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Criminal Justice and the Liberal State

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The Palgrave Handbook on the Philosophy of Punishment

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Abstract

The chapter concerns the relationship between the justification of criminal law and punishment and the justification of the state. It briefly surveys the debate between retributivists and consequentialists and argues that both are inappropriate when it comes to state punishment. It next turns to arguments by Vincent Chiao, Malcolm Thorburn, and Antony Duff that locate criminal law and punishment in public law. The final parts of the chapter develop an account of criminal law and punishment as best understood as constitutive elements of a liberal political community necessary to ensure stability, to reinforce the commitment of the members to the rules as regulative of their plans of life, and to communicate and censure the offender for the wrong that has been done.

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Notes

  1. 1.

    I am not sure where the phrase “political turn” first emerged. It was used for a conference in 2019 and has since appeared in the literature, including in papers that emerged from that conference (Burchard and Duff 2021) and in Brown Coverdale and Wringe (2022) and Thorburn (2022).

  2. 2.

    For details, see Moore (1997); for criticisms, see Dolinko (1991, 555–59), Matravers (2000, 81–87), and Hoskins and Duff (2021, §4).

  3. 3.

    A similar criticism is made by Malcolm Thorburn: “Moore has no tools available to explain why it must be the state and only the state that delivers criminal justice” (2012, 86–87). One of the more remarkable features of the very long first chapter of Moore’s book is that, despite its length and its focus on being “a theory of criminal law theories,” it does not mention the state once in its seventy-eight pages.

  4. 4.

    In Punishment and the Moral Emotions, Jeffrie Murphy writes of Moore that, “if he believed in God he probably would not favor this [retributive] account of secular, state punishment” (2012, 29).

  5. 5.

    It also misrepresents the origins and development of the criminal law. On the ways in which the criminal law was, and is, centrally concerned with order, see Farmer (2016).

  6. 6.

    It is important to distinguish this claim from the claim that all punishment is state punishment or that theorists of state punishment have nothing to learn from other instances of punishment. Legal punishment—which follows criminal lawbreaking, which in turn presupposes criminalization—is distinct in that very sense. However, that is not to say that non-legal punishments have nothing to teach us or that we should always focus on “paradigmatic punishments” such as imprisonment. For a useful survey, see Brown Coverdale and Wringe (2022); for a recent monograph, Radzik (2020).

  7. 7.

    For an interesting account of how utilitarianism is particularly suited to public policy—often for precisely the same reasons as it is not suited to ordinary interpersonal morality—see Goodin (1995).

  8. 8.

    For critical discussions of utilitarianism (both act and rule), see Mabbott (1955), Lyons (1965), and Williams (1973). For a more detailed account of the argument above with respect to punishment, see Matravers (2000, ch. 1).

  9. 9.

    In addition to the authors discussed below, others who have criticized the suitability of “interpersonal morality” as a basis for discussing state punishment, and who have offered alternative accounts of the latter, include Lindsay Farmer (2016) and Nicola Lacey (2004, 2016a, 2016b).

  10. 10.

    For an interesting discussion of these costs in relation to whether the achieving of retributive justice is “worth” the price, see Husak (2008, 203–6). As Husak puts it, “the expense of our system of criminal justice is astronomical. … Persons might reasonably prefer to use their tax dollars for any number of other worthy purposes” (203–4).

  11. 11.

    Thus, Thorburn joins with Chiao and Farmer in arguing that “criminal wrongs and justifications in the common law world do not even approximately follow the contours of moral wrongdoing and justification” (Thorburn 2011, 23).

  12. 12.

    For a clear statement of his differences with Moore, see Duff (2014).

  13. 13.

    For a detailed discussion of Duff’s account public wrongs, see Dempsey (2011).

  14. 14.

    In addition to Farmer (2016), the relationship of civil society, liberalism, and punishment is examined in Jonathan Jacobs’s important recent book, The Liberal State and Criminal Sanction (2020).

  15. 15.

    For discussion of the place of punishment in Duff’s theory, see Matravers (2011). For Duff’s response, see Duff (2011, 374–75).

  16. 16.

    I am indebted in what follows to Hanafy (2021, 54–64).

  17. 17.

    This criticism has been made by several people. For example, Michael Moore alleges that the account of public wrongs is “in danger of returning us to the conventionalist and relativist ethics that made Devlin’s brand of legal moralism so distasteful” (2014, 199). Victor Tadros claims that “any wrongdoing could become the state’s business by the public binding itself together by the values that underpin the wrong” (2016, 126). And Patrick Tomlin says, “‘public wrongs’ seems so permissive as to provide hardly any brakes on the criminalization process at all—if we think something is ‘our’ business, we can criminalize it” (2020, 320).

  18. 18.

    In developing this account, I have drawn on Charvet (1995, 2013, 2019) and Matravers (2000).

  19. 19.

    What follows draws on Matravers (2000, chs. 8–9).

  20. 20.

    This raises the issue of what to do with those offenders who do not endorse, but reject, the entirety of the rules and thus their membership of the political community. It may be that a political community has no other option at that point other than what Andrew von Hirsch calls “tiger control” (1993, 6)—that is preventative control—while, if possible, engaging with the offender to convince them of the value of the civil order.

  21. 21.

    Cf. Simester and von Hirsch: “Rational coercion operates via, and appeals to, the subject’s responsible agency; it offers her reasons for action, reasons she may choose to ignore. It does not make the decision for her” (2011, 6–7).

  22. 22.

    I am grateful to the Leverhulme Trust for a Major Research Fellowship (award MRF-2020-090) that enabled me to work on this chapter.

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  1. University of York, York, UK

    Matt Matravers

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  1. Philosophy & Religious Studies, Central Washington University, ELLENSBURG, WA, USA

    Matthew C. Altman

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Matravers, M. (2023). Criminal Justice and the Liberal State. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_15

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