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Notes
These problems will explain his justifiable enthusiasm with the jury, restorative justice and other legal mechanisms that could contribute to “close social distances between offenders and victims, and between the people who commit offenses and the people who live near them and will live near them when the are done making amends” (39). These responses, Dzur assumes, can promote people’s civic capacities, stressing our “interconnectedness” and “relationships that link us together” (ibid.).
In one telling paragraph, Dzur refers to “the background legitimacy of the law as something the defendant recognizes as his. Inclusion and participation thus must go all the way down, for in the absence of a political community that treats citizens as co-owners, there can be no rightful expectation that one who violates the law should feel ashamed and seek to make amends. How can he own up to violating a law that has not treated him as a co-owner?” (Dzur 2012, 91, emphasis added). The paragraph is particularly interesting because it touches many of the critical interests of a deliberative view of democracy. It recognizes that the legitimacy of the law is substantially linked to the way in which the law is created; it properly identifies that inclusion and participation are fundamental prerequisites of a valid legislation; it adequately signals that a legal system that does not treat every citizen as an equal (as “a co-owner”) is a flawed legal system.
I must acknowledge, however, that particularly at the end of his book, Dzur properly distinguishes between “three kinds of participation”, namely plebiscitary, advocacy, and load bearing (163). He states: “criticism of democratic justice is best understood as criticism of the plebiscitary and advocacy participation witnessed in the last generation”. In addition, he highlights the importance of placing “lay participants” into a dialogical context with others (164). However, I also think that these moves represent only a first necessary step in the direction of a—still missing—more robust and complete approach that connects a certain theory of democracy (and I would also add a certain theory of justice) with criminal justice.
Of course, a properly established deliberative system would not ensure impartiality—no legal system could guarantee that. However, I submit, it would maximize the chances of deciding impartiality, which for present purposes should be enough.
According to Feinberg, “punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those ‘in whose name’ the punishment is inflicted” (Feinberg 1965, 96). The communicative approach, instead, sees the Criminal process as a “two-way”- process, where one part tries to actively address the other, resorting to his reason, rather than his fear (see, for example, Duff 2001; Dzur 2012, 90).
Communicative approaches propose to enter into a moral dialogue with the offender, in order to communicate to him the social condemnation for what he has done. What they emphasize is the importance of expressing a social condemnation in the face of certain crimes, rather than deterring or incapacitating offenders. In Duff’s words, the Criminal Justice system should not seek the people’s “obedience to its demands, but their understanding and acceptance of what is required of them as citizens” (Duff 2001, 80). What we need is to strengthen his or her links to the rest of us, and convince him or her that there are important reasons for him or her to obey the law (which presupposes that he or she has reasons to recognize his or herself as an author of the law).
Given the rather “natural” or obvious connections that exist between a deliberative view of democracy and a communicative understanding of punishment, it is surprising that authors such as Carlos Nino, an early proponent of deliberative democracy, did not make or pursue that connection. Nino began and concluded his academic career writing about criminal justice (Nino 1980, 1983, 1996b) and in between both extremes, dedicated almost two decades to develop a powerful approach to deliberative democracy (Nino 1996a, b). Pablo de Greiff rightly point out this missing connection, making reference to the fact that, in his latest writings, Nino still founded his views on Criminal Justice from moral premises alone, leaving no clear role to his views on democratic legitimacy (de Greiff 2002, 383).
Dzur examines this approach in pages 27-30.
“Let criminal evil be exposed in the media, especially with the vivid impressions that can be created in contemporary television, and there will be no shortage of popular outrage” (Pettit 2002, 434). The case of Pettit is particularly surprising, given his—in general—refined and enormously attractive approach to both the issues of democracy and criminal justice.
In the conclusion of their book on punishment and democracy (aimed at analyzing the “three strikes” legislation in California), Zimring et al. reach basically the same conclusion. For them, a “reason to insulate punishment from democratic political processes is to avoid placing a vulnerable area of governance in an arena where it can be used as an opening wedge for broader attempts to undermine the credibility of government” (Zimring et al. 2001, 232).
For the same reasons, a deliberative democrat would not simply accept the creation of new counter-majoritarian devices.
Unfortunately, even Dzur ends up opening more room than necessary to the technocratic view. Thus, at the end of his book, Dzur admits “the possibility that citizen participation in adjudication can lead counterproductively to greater punitiveness in the form of more criminalization, harsher penalties, penal shaming, and degradation” (163). Also, in his conclusion he claims: “I have shown that it is not a dominance of experts but an equilibrium balancing formal procedure and technical expertise with informal elements and lay knowledge that helps realize the goal of seeing, talking with, and treating the offender as a particular individual and as a person worthy of respect” (161). From a deliberative perspective, none of these claims seem in principle reasonable.
This is basically the same conclusion reached by Dzur and Mirchandani 2007; and Johnstone 2000. For them too, “far from illustrating the need for buffers between the public and criminal justice policy making, the penal populism evidenced in three strikes laws shows the need for an even deeper, albeit better informed and more closely engaged, kind of public involvement” (Dzur and Mirchandani 2007, 163).
Dzur, for example, talks about the “exclusionary tendencies that undermine the general legitimacy of criminal courts”, which he sees as a “constant feature” of modern societies (Dzur 2012, 92).
This consequence is related to a crucial—Millean—assumption of the deliberative view, which is that each person is the best judge of his or her own interests. This is what makes the participation of every person in the deliberative process, necessary. As a result of this, one can conclude that the systematic absence of part of the population from that process of creating and interpreting the law make it less likely to properly balance the needs, interests and demands of all different individuals and groups. I refer to these as situations of legal alienation (Gargarella 2012).
Duff has maintained, in this respect, that “Sufficiently persistent, systematic, and unrecognized or uncorrected failures to treat individuals or groups as members of the polity who share in its goods undermine the claim that they are bound by its laws. (Duff 2001, 195–196). Based on partially similar reasons, Jeffrie Murphy maintained that “modern societies largely lack the moral right to punish” (Murphy 1973, 221) and also that “in the absence of a major social change” institutions of punishment are “to be resisted by all who take human rights to be morally serious” (ibid., 222).
In Duff words, “[a]ny account of punishment which makes the justice of an offender’s punishment crucial to its justification must face the problem of whether we can justly punish offenders whose offences are closely connected to serious social injustice which they have suffered” (Duff 1998, 197).
References
Braithwaite, J. & Pettit, P. (2000), “Republicanism and Restorative Justice: An Explanatory and Normative Connection,” in H. Strang & J. Braithwaite, Restorative Justice, Burlington: Ashgate.
Braithwaite, J. & Pettit, P. (1990), Not Just Deserts: A Republican Theory of Criminal Law, Oxford: Clarendon Press.
de Greiff, P. (2002), “Deliberative Democracy and Punishment,” Buffalo Criminal Law Review, vol. 5, n. 2, 373–403.
Duff, A. (1998), “Law, Language and Community: Some Preconditions of Criminal Liability,” 18 Oxford Journal of Legal Studies 189-206.
Duff, A. (2001), Punishment, Communication, and Community, Oxford: Oxford University Press.
Dzur, A., & Mirchandani, R. (2007), “Punishment and Democracy. The Role of Public Deliberation,” Punishment and Society, 9, 2, 151–175.
Elster, J. (1986), “The market and the forum: Three varieties of political theory,” in Foundations of social choice theory, ed. Elster and Aanund Hyland, 103–32. Cambridge: Cambridge University Press.
Feinberg, J. (1965), “The Expressive Function of Punishment,” The Monist, 49, 397–423.
Gargarella, R. (2012), “Law and Social Protests,” Criminal Law and Philosophy, vol. 6, 15–27.
Garland, D. (2002), The Culture of Control, Chicago: The University of Chicago Press.
Habermas, J. (1996), Between Facts and Norms; Cambridge: MIT Press.
Hampton, J. (1984), “The Moral Education Theory of Punishment,” Philosophy and Public Affairs, vol. 13, n. 3, 208–238.
Johnstone, G. (2000), “Punishment and Society. Elitist, populist or participatory?” Punishment and Society, 2, 2, 161–180.
Martí, J. (2009), “The Republican Democratization of Criminal Law and Justice,” in S. Besson & J.L.Martí, Legal Republicanism, Oxford: Oxford University Press.
Murphy, J. (1973), “Marxism and Retribution,” Philosophy and Public Affairs 2, 217–43.
Nino, C. (1980), Los límites de la responsabilidad penal, Buenos Aires: Astrea.
Nino, C. (1983), “A Consensual Theory of Punishment”, Philosophy and Public Affairs, vol. 12, 289–306.
Nino, C. (1996), The Constitution of Deliberative Democracy, Conn.: Yale Univ. Press.
Nino, C. (1996b), Radical Evil on Trial, Conn.: Yale Univ. Press.
Pettit, P. (1997), “Republican Theory and Criminal Punishment,” Utilitas 9, n. 1.
Pettit, P. (1997), Republicanism, Oxford: Oxford University Press.
Pettit, P. (2002), “Is Criminal Justice Politically Feasible?” 5 Buffalo Criminal Law Review, 427.
Roberts, J. et al (2002), Penal Populism and Public Opinion, Oxford: Oxford University Press.
Ryan, M. (1999), “Penal Policy Making Towards the Millennium: Elites and Populists; New Labour and the New Criminology,” International Journal of Sociology of Law, 27, 1–22.
Zimring, F., Hawkins, G., Kamin, S. (2001), Punishment and Democracy. Three Strikes and You’re Out in California, Oxford: Oxford University Press.
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Gargarella, R. Punishment, Deliberative Democracy & The Jury. Criminal Law, Philosophy 9, 709–717 (2015). https://doi.org/10.1007/s11572-013-9269-y
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DOI: https://doi.org/10.1007/s11572-013-9269-y