Abstract
The commission of criminal wrongs is occasionally revealed after the (suspected) wrongdoer’s death. In such cases, there seems to be a widely-shared intuition, which also frequently motivates many people’s actions, that the dead should still be blamed and that some response, not only stemming from civil society but also the state, to the criminal wrong is necessary. This article explores the possibility of posthumous blame and punishment by the state. After highlighting the deficiencies of the pure versions of retributivism and general deterrence theory, but also the potential in the latter, it argues for a political theory of the criminal law (mainly from a normative perspective, although the modest claim is made in passing that current institutional arrangements are best understood in this light), which views institutions of punishment as the business not only of defendants and victims but also the political community as a whole. Within this normative scheme posthumous responses to wrongs are possible and in some cases necessary for the maintenance of the stability of the political community. Accountability-holding processes may also be possible and necessary for the protection of the reputation of the deceased suspected wrongdoer.
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Notes
http://www.itv.com/news/update/2012-10-04/watch-the-itv-documentary-on-jimmy-savile/ (last accessed on 15 May 2015).
The investigation also spanned over alleged historical crimes of the same nature committed by others. Some have been convicted on various grounds and others released. The investigation as well as some criminal trials is still ongoing.
According to research carried out by the National Society for the Prevention of Cruelty to Children (NSPCC) broadcast on the BBC in June 2014, the number of cases reaches 500. In November 2014 yet more allegations emerged and are being investigated by hospitals, with which Savile was linked.
Savile had also been made a Knight Commander of the Pontifical Equestrian Order of St. Gregory the Great by the Holy See.
There is a wealth of historical examples of such practices, many of which are, however, coupled with a strong shared belief in an afterlife.
This is independent of the question of whether the passage of time affects judgements as to whether a crime ought to be prosecuted and the wrongdoer punished for it.
For a very strong expression of this, see Michael Moore, Placing Blame: A Theory of the Criminal Law (Oxford University Press, 1997), p. 154.
For a thorough argument about the possibility of posthumous harm, see Joel Feinberg, The Moral Limits of the Criminal Law Volume 1: Harm to Others (Oxford University Press, 1987), pp. 79ff. See also Dorothy Grover, ‘Posthumous Harm’ (1989) 39 The Philosophical Quarterly 156, pp. 334–353.
Mitchell Berman, ‘Two Kinds of Retributivism’ in R.A. Duff and Stuart P. Green (Eds.) The Philosophical Foundations of Criminal Law, OUP 2011. Berman also provides a very helpful survey of retributivist views on this.
Thomas Nagel, Mortal Questions (2nd edition, Cambridge University Press, 2012).
Epicurus thought this. See his Letter to Menoeceus.
For an argument as to why punishment as an “inherent public good” may only be administered by public bodies, see Alon Harel and Ahivay Dorfman, ‘The Case Against Privatization’ (2013) 41 Philosophy & Public Affairs 1, pp. 67–102.
It would not, however, be open to retributivists to argue that the desert claim does not determine the desert object at all. Surrendering the desert object to other reasons, for instance, consequentialist ones, would amount to reducing punishment to external reasons. For an account of how the retributivist idea has been merged with consequentialism in that way, see Berman above no. 10.
This is not to say that this is the desert subject in all desert claims. That is a separate question.
Moore, Placing Blame (no. 8), p. 153.
One might argue that we care about others selflessly and without considering the impact on our well-being. I am not considering this argument here mainly because it does not square with the prudential, self-regarding orientation of a GDT. Unfortunately, lack of space does not allow me to consider it as an independent argument and its implications for the justification of punishment.
For this argument see Samuel Scheffler, Death and the Afterlife (Niko Kolodny, Ed.) (Oxford University Press, 2013).
Scheffler (ibid) believes that the fact that we will feel that our activities now will be devoid of value if humanity does not survive us for a sustainable period of time shows that we are not entirely egoistic beings. I do not need to go into that argument in this context.
Peter Railton, ‘Facts and Values’ (1986) 14 Philosophical Topics 2, pp. 5–31.
Aristotle considers this in the Nicomachean Ethics. He tries to reconcile the, at the time, widely-shared intuition that events in other people’s lives have a bearing on the happiness of the dead and his intuition that the opposite view would be too unsociable (in his own understanding of sociability) with his view of happiness as the active life. For an exegetic comment on this, see Kurt Pritzl, ‘Aristotle and Happiness after Death: Nicomachean Ethics 1. 10–11’ (1983) 78 Classical Philology 2, pp. 101–111.
James Griffin, Well-Being: Its Meaning, Measurement and Moral Importance (Oxford: Clarendon Press, 1986), 17.
The political turn in criminal law theory has been gaining momentum over the last few years. Some notable contributions are R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart Publishing, 2007); John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford University Press, 1990); Matt Matravers, Justice and Punishment: The Rationale of Coercion (Oxford University Press, 2000); Dan Markel ‘Retributive Justice and the Demands of Democratic Citizenship’ (2012) 1 Virginia Journal of Criminal Law 1, pp. 1–134; I began to develop such a similar, yet different in significant respects, approach in Emmanuel Melissaris, ‘Toward a Political Theory of Criminal Law: A Critical Rawlsian Account’ (2012) 15 New Criminal Law Review 1, pp. 122–155. I am currently developing it further in a book-length treatment. The account here builds on that work.
This is largely contra a political philosophy such as Kant’s, which only admits the first sense of publicity.
I take John Rawls and Jürgen Habermas to have provided the most central expressions of the post-metaphysical turn. See mainly J. Rawls, Political Liberalism (Columbia University Press, 1993) and J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (MIT Press, 1996).
This argument is similar, yet different in its details, to the Kantian idea that wrongdoing is unilaterally authorised by the wrongdoer’s will, which makes it impermissible.
See R.A. Duff, Answering for Crime above no. 23.
For a concise overview, see Andrew Ashworth and Mike Redmayne, The Criminal Process (4th edn, Oxford University Press, 2010), p. 145.
I take it that the altera pars audiatur principle may be mostly satisfied by proper representation.
This is in fact corroborated by many current institutional practices in various jurisdictions. Lack of space does not allow me to discuss such examples here.
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Melissaris, E. Posthumous ‘Punishment’: What May Be Done About Criminal Wrongs After the Wrongdoer’s Death?. Criminal Law, Philosophy 11, 313–329 (2017). https://doi.org/10.1007/s11572-015-9373-2
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DOI: https://doi.org/10.1007/s11572-015-9373-2