Abstract
Retributivism so dominates criminal theory that lawyers, legal scholars and law students assert with complete confidence that criminal law is justified only in light of violations of another person’s rights. Yet the core tenet of retributivism views criminal law fundamentally through the lens of individual actors, rendering both offender and victim unrecognizably denuded from their social and civic context. Doing so means that retributivism is unable to explain even our most basic criminal law practices, such as why we punish recidivists more than first time offenders or why “hate crimes” are of special concern. A republican view of criminal law brings our most natural intuitions back into focus by insisting that the core of criminal responsibility lies in the offender’s attack on the civic bonds that make living in a society as equals possible. By grounding our punishment practices in an Aristotelian republicanism that for so long was the unquestioned basis of mutual responsibility, we understand that hostility, as expressed in the offender’s “civic character,” matters to us all while still seeing our obligations to reintegrate both victim and offender into our shared civic project.
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Notes
The chief rival to retributivism, consequentialism, is most powerfully embarrassed by the inability to appropriately restrict criminal law in principle. The classic thought experiment undermines the consequentialist by imagining a situation where harm to a large group of people can be avoided by framing and “punishing” an innocent person for a crime he did not commit. That consequentialism does not provide a principled reason not to punish in such cases means its advocates must either deny that such a scenario is plausible, import foreign deontological constraints (Rawls 1955) or bite the bullet and admit that inflicting punishment on innocent persons for the sake of increased utility is morally acceptable (Smart 1973). In any case, the lack of intrinsic limits on the reach of state power lands a deep blow to the plausibility of consequentialism as a political theory.
Trayvon Martin was a 17-year old African-American, fatally shot by George Zimmerman, a multi-racial Hispanic man who was appointed the neighborhood watch coordinator in the gated community where Martin was staying. Zimmerman noticed Martin and felt the young, African-American man was behaving suspiciously. He contacted the police, who instructed him not to interact with Martin and informed him they were en route. Despite this Zimmerman approached Martin and the encounter ended with Zimmerman shooting Martin, once in the chest.
When the police arrived, Zimmerman, bleeding from the nose and lacerations on the back of his head, claimed that Martin had attacked him. Though questioned for 5 h Zimmerman was not arrested or charged with a crime. For many in the African-American community, the decision not to charge Zimmerman was evidence that police acquiesced in the social image that young, black men could be treated as a constant threat and in any case the life of a young black man was of less value.
Whether this accurately captures Kant’s views on legal punishment is a matter of much greater controversy. On the best reading of Kant it is at least severely incomplete as it ignores the important inconsistencies in Kant’s ambivalent musings on punishment and the fact that the basis of legal power in the Rechtslehre is securing equal freedom rather than punishing internal moral blameworthiness. See Murphy (1987); Ripstein (2009 ).
Some philosophers have famously tried to find space in liberalism for a sort of perfectionism. Raz (1986 ).
Other scholars balance the retributivist impulse to punish against a rigorous deontological view of rights as against state interference in order to cabin modern excesses of criminal punishment. See Husak (2008).
Bureau of Justice Assistance, Dep't of Justice, National Assessment of Structured Sentencing 71, 341–352 (1996).
U.S. Sentencing Comm'n, U.S. Sentencing Guidelines Manual § 4A, introductory cmt. (2008).
George Fletcher, for example, once held that it was the ability to attribute a criminal act to the offender’s character that grounded liability and provided an explanation of the nature of excusing conditions. Fletcher (1978 : 799–802). Jeremy Horder has indicated the same. Horder (2007). For a fuller discussion of character theories of law see Yankah (2004).
Here I bracket Hurd and Moore’s arguments that hate crime legislation is unique in inculpating greater punishment for motive.
For an engaging discussion of the ways in which hate crime legislation may not be particularly unique in inspecting motivation and may cause distinct harm see Kim (2006).
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Yankah, E.N. Republican Responsibility in Criminal Law. Criminal Law, Philosophy 9, 457–475 (2015). https://doi.org/10.1007/s11572-013-9283-0
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DOI: https://doi.org/10.1007/s11572-013-9283-0