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Could We Live Together Without Punishment? On the Exceptional Status of the Criminal Law

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Notes

  1. I will assume here (as many do) that the criminal law entails punishment (and when I talk in what follows about “punishment”, I will mean criminal punishment). But against making this somewhat quick assumption see Antony Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018), pp. 13–16.

  2. I am grateful to Antony Duff and Christoph Burchard for pushing me in making this clarification.

  3. See Douglas Husak, “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law”, New Criminal Law Review 23(1) (2020): 27; John Gardner, “Crime: in Proportion and in Perspective”, in Andrew Ashworth and Martin Wasik (eds.), Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch (Oxford: Clarendon Press, 1998), 31.

  4. See e.g. Peter Ramsay, “A Democratic Theory of Imprisonment”, in Albert W. Dzur and others (eds.), Democratic Theory and Mass Incarceration (Oxford: Oxford University Press, 2016), 84. The connection between rights and punishment can also be found in many human rights discourses: see Fernando Felipe Basch, “The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and Its Dangers”, American University International Law Review 23(1) (2007): 195, p. 195; Karen Engle, “Anti-Impunity and the Turn to Criminal Law in Human Rights”, Cornell Law Review 100(5) (2015): 1069.

  5. On the modern origins of this worry, see Rocío Lorca, “The Presumption of Punishment: A Critical Review of its Early Modern Origins”, Canadian Journal of Law & Jurisprudence 29(2) (2016): 385.

  6. Thomas Hobbes, Leviathan (Indianapolis: Hackett, 1994) at chaps. XIII and XIV and Max Weber, “The Profession and Vocation of Politics”, in Peter Lassman and Ronald Speirs (eds.), Weber: Political Writings (Cambridge: Cambridge University Press,1994), 309.

  7. I agree with those who think that coercion is essential to law and to that extent, to the modern state: see e.g. Ekow Yankah, “The Force of Law: The Role of Coercion in Legal Norms”, University of Richmond Law Review 42(5) (2008): 1195; Grant Lamond, “The Coerciveness of Law”, Oxford Journal of Legal Studies 20(1) (2000): 39. However, my point here is that public coercion, or the state’s resort to force in order to compel obedience and secure civil order, need not take the form of punishment: see Oona Hathaway and Scott J. Shapiro, “Outcasting: Enforcement in Domestic and International Law”, Yale Law Journal 121(2) (2011): 252.

  8. Husak, n. 3 above.

  9. Gardner, n. 3 above. Paul and Sarah Robinson have analyzed the issue in different terms, suggesting that the problem might lie less with vengeful victims than with a loss of confidence in the justice system that creates “shadow vigilantes” people who having lost trust in the criminal law and who undermine the system in subreptitious ways: Paul H. Robinson and Sarah M. Robinson, Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness (Amherst: Prometheus Books, 2018), chap. III.

  10. See Philip Pettit, “Is Criminal Justice Politically Feasible?”, Buffalo Criminal Law Review 5(2) (2002): 427, on the “outrage dynamic” exerting pressure on politicians and legislators.

  11. Criminologists often speak about the dark figure of crime—those crimes which are not reported and investigated by criminal law institutions; studies suggest that around 40% of crimes might not even be reported: see Terry L. Penney, “Dark Figure of Crime (Problems of Estimation)”, in J. S. Albanese (ed.), The Encyclopedia of Criminology and Criminal Justice (Oxford: Blackwell Publishing, 2014), 1–6; Edwin H. Sutherland, “Is ‘White Collar Crime’ Crime?”, American Sociological Review 10(2) (1945): 132.

  12. Beyond the harms of punishment itself, the collateral social and political costs of punishment are very high. These costs fall not only on convicted people but also on their families and wider communities. See, e.g., Bruce Western, Punishment and inequality in America (New York: Russell Sage Foundation, 2006); Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007).

  13. I am grateful to Matías Díaz for raising this point.

  14. Criminal law itself might be part of the reason why we do not see so much private violence, since private violence is usually criminalized, and people may be afraid of being prosecuted if they pursue vengeance. However, the ways in which current social movements have confronted police and turned to violence in protest against the status quo suggest that fear of or respect for the criminal law is not such an important part of the story. I am grateful to Alejando Chehtman for pushing me on this issue.

  15. The crime and violence that surrounds the drug trade in some countries in South and Central America does not just consist of many infractions of the criminal law and much harm done to individuals; it also often threatens the political stability of these communities and the credibility of all of their legal institutions. See the declaration by the Latin American Commission for Drugs http://www.cicad.oas.org/fortalecimiento_institucional/planesnacionales/docs/Drogas%20y%20Democracia.%20Hacia%20un%20cambio%20de%20paradigma.pdf.

  16. Dwayne A. Mack and Felicia W. Mack, “Policing with Impunity”, in Hector Y. Adames and others (eds.), Law enforcement in the age of Black Lives Matter: Policing black and Brown Bodies (Lanham: Lexington Books, 2017), 13; Devon W. Carbado, “From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence”, California Law Review 105 (2017): 125.

  17. See the descriptions of Black Lives Matter: https://blacklivesmatter.com/about/; https://m4bl.org.

  18. Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (21) (Oakland: University of California Press, 2007), p. 28.

  19. But see Maximo Langer, “Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then”, Harvard Law Review Forum 134 (2020): 42. Compare Paul and Sarah Robinson’s discussion of “shadow vigilantism” (n. 9 above): it is not clear that the lack of trust in the system that triggers these kinds of vigilante is directly a function of the lack of punishment. Rather, there is reason to believe that the system’s credibility can be more directly secured through other means, such as social policies that contribute directly to prevent crime and corruption and create a more stable and genuine sense of security and concern.

  20. See John Locke, Second Treatise of Government (Indianapolis: Hackett Publishing Company, 1980), pp. 9–10; Hugo Grotius, Commentary on the Law of Prize and Booty (Indianapolis: Liberty Fund. Inc., 2006), pp. 21, 27, 30–32. See also Richard Tuck, The Rights of War and Peace (Oxford: Oxford University Press, 1999), pp. 84–86; Lorca, n. 5 above.

  21. See at n. 5 above.

  22. See e.g. Yankah, n. 7 above; Lamond, n. 7 above. But contrast Hathaway and Shapiro, n. 7 above.

  23. Vincent Chiao, Criminal Law in the Age of the Administrative State (Oxford: Oxford University Press, 2018) chap. 2.

  24. Interestingly, it seems that in a primitive stage of modern criminal law, punishment appeared in the common law as an alternative to compensation and not as complementary to it. See Chiao, n. 23 above, pp. 11–17.

  25. There have been, however, some attempts to understand punishment as self-defense in the sense of being an instance of societal defense: see e.g. Phillip Montague, Punishment as Societal-Defense (Lanham: Rowman & Littlefield, 1995).

  26. Indeed, both Christoph Burchard and Alice Ristroph seem to suggest the contrary, in the sense that, according to them, a belief about certain practical features of the criminal law has triggered a certain ideology or way of thinking about the criminal law as an ideal institution. I come back to this below.

  27. Antony Duff and Sandra Marshall, this issue.

  28. And criminal sanctions themselves are often not as burdensome as we seem to believe.

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    Rocio Lorca

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Lorca, R. Could We Live Together Without Punishment? On the Exceptional Status of the Criminal Law. Criminal Law, Philosophy 17, 29–38 (2023). https://doi.org/10.1007/s11572-021-09617-1

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