Pablo de Griff Deliberative Democracy and Punishment

Deliberative Democracy and Punishment
Author(s): Pablo de Greiff

Source: Buffalo Criminal Law Review, Vol. 5, No. 2 (January 2002), pp. 373-403
Published by: University of California Press
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Deliberative Democracy and Punishment

Pablo de Greiff
Abstract. This paper contests the traditional division of

labor that confines theories of punishment to the domain of
moral, or at the most, legal, theories, as if punishment did
not pose a challenge to political theories as well. It is thus
also an attempt to clarify the relationship between moral
and political theory. After pointing out that despite the
recent surge in interest in different aspects of deliberative
democracy, its theorists have been silent on the question of
punishment, the paper argues, concretely, that this is a
silence that does not serve them well, and that can be made
up by establishing links between a deliberative theory of
democracy and a modified expressionist theory of
punishment.
The issue of punishment raises interesting questions

about the relationship between moral, political, and social
theory. Some of the relevant links remain under-explored,
given the continuing prevalence of a sharp division of labor
among political and moral theorists. Under this division of
labor, punishment is dealt with largely by moral theorists.1
The neglect of punishment on the part of political theorists
suggests the implausible assumption that political systems
need not worry about the issue of punishment beyond,
My gratitude to participants at different sessions where I have presented
earlier versions of this paper, including the Inter American Philosophical
Congress in Puebla, Mexico, in August 1999, the Baldy Center for Law and Social
Policy in December 1999, and the conference Deliberating Deliberative
Democracy at the University of Texas, Austin, February 2000. At this last
conference I owe a special debt to my two commentators, Philip Pettit and
Michael Saward. The following have also given me comments on different drafts
of the paper: Bruce Ackerman, Guyora Binder, John Braithwaite, David Crocker,
Ciaran Cronin, Netwon Garver, Klaus Gnther, Tom McCarthy, Philip Pettit,
Thomas Pogge, Bill Rehg, and Jerome Slater. Needless to say, the remaining
difficulties are mine alone.
1. For instance, in Blackwells reputed Companion to Philosophy series,
there is no entry for punishment in the Companion to Contemporary Political
Philosophy (Robert Goodin & Philip Pettit eds., 1993). The topic appears only in
A Companion to Ethics (Peter Singer ed., 1991). This reflects a general tendency.

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BUFFALO CRIMINAL LAW REVIEW [Vol. 5:373
perhaps, recognizing that the practice is indispensable.

Most theorists of deliberative democracy, for example, have
remained silent on questions relating to punishment.2 This
silence is surprising given that deliberative democrats have
both internal and external reasons to address the issue of
punishment. The main external reason lies in the dramatic
acceleration in rates of incarceration in the United States
during the last twenty years, and the increasing reliance on
penal measures as methods for resolving a wide variety of
social problems.3 But the silence is especially surprising
given an internal reason, that is, that most deliberative
theorists are willing to acknowledge that the aim of
democratic law-making is to formulate rules that, in
addition to being rationally defensible, are coercively
enforceable.
The same sort of disconnect between different
branches of normative social theory is visible if one
approaches the issue of punishment not from the
perspective of political theory but of moral theory: most
theorists of punishment seem to think of their work as part
of moral, or, at the most, legal theoryas if punishment
took place in a political vacuumthus rarely making
explicit the points at which their positions require an
appeal to a broader political theory. This paper aims to
draw connections between a theory of deliberative
democracy and an expressionist theory of punishment and
2. Perhaps the two most notable exceptions are Carlos Nino and Philip
Pettit. See Carlos Nino, A Consensual Theory of Punishment, 12 Phil. & Pub. Aff.
289 (1983) [hereinafter A Consensual Theory of Punishment]; Carlos Nino, The
Ethics of Human Rights (1989) [hereinafter Ethics of Human Rights], Carlos
Nino, Radical Evil on Trial (1996); see also John Braithwaite & Philip Pettit, Not
Just Deserts (1990).
3. The number of inmates in state and federal prisons has increased more
than five-fold from less than 200,000 in 1970 to 1,254,600 by 1999. An additional
606,000 are held in local jails. The 1999 rate of incarceration in the US of 682
inmates per 100,000 population is the second highest reported rate in the world,
behind only Russias rate of 685 per 100,000 for 1998. Almost 5 percent of the
adult males and 1percent of the adult females in the United States were under
some form of correctional supervision in 1996. See, Bureau of Justice Statistics,
U.S.
Dept
of
Justice,
Corrections
Compendium,
available
at
http://www.ojp.usdoj.gov/bjs (last visited Mar. 20, 2002).

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DEMOCRACY AND PUNISHMENT
375
to show how such connections help to fill gaps in each.

In trying to establish these links, I will not attempt to
pin on deliberative democracy a particular theory of
punishment, as if one could be deduced from the basic
premises of the position. Among other reasons, deliberative
democracy is itself becoming such a diverse position that
there are hardly any common premises from which a
deduction could start. More fundamentally, I do not
conceive the relationship between a theory of democracy
and a theory of punishment as a deductive one. Having
said this, however, I think that there are unexplored
affinities between a particular take on deliberative
democracybroadly speaking a Habermasian oneand a
particular theory of punishment, a form of an expressionist
theory akin to those defended by Jean Hampton and
Antony Duff.4
What distinguishes expressionist positions is that they
focus on punishment as an expression of condemnation,
rather than, say, as a deterrent or a tool for incapacitating
offenders. Furthermore, they take this expression not only
to capture the meaning of punishment, but also, by itself,
even to justify the practice. Since the point of punishment
cannot be merely to express a judgment without regard for
whether there is any kind of uptake, most expressionist
theorists argue that the aim of punishment is to persuade
offenders and others about the wrongfulness of certain
kinds of conduct. If one concentrates not only on this
expressive function of punishment, but construes the
process that leads to it, and the punishment itself, in
sufficiently dialogical terms, one could begin to formulate a
communicative theory of punishment. This would help fill
a gap in the broader discourse theory of law. This is the
aim of the first three sections of this paper.
4. See R.A. Duff, Trials and Punishment (1986); Jean Hampton, The Moral
Education Theory of Punishment, 10 Phil. & Pub. Aff. 209 (1981) [hereinafter
Hampton, Moral Education]; Jean Hampton, A New Theory of Retribution, in
Liability and Responsibility 397 (R.G. Frey & Christopher W. Morris eds., 1991)
[hereinafter Hampton, A New Theory of Retribution], and her papers in Jeffrie
Murphy & Jean Hampton, Forgiveness and Mercy (1988).

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Having tried to help at least some deliberative

democrats to an account of punishment, in the last two
sections I show how deliberative approaches to law can
themselves help solve some outstanding problems of
expressionist theories.
I. A DELIBERATIVE ACCOUNT OF DEMOCRACY
Given the recent flurry of interest in deliberative
democracy, it is hardly necessary to go into details about
what this way of thinking about democracy entails.5 Here I
will only sketch in broad terms the main characteristics of
the account I will use as my starting point. This is an
account of deliberative democracy which commits itself to
the ideas of persuasion and participation, that offers a
dual, epistemic and normative defense of participation,
that gives to persuasion and participation the status of
idealizations, and that is generally non-reductionistic
concerning questions of legitimacy.
A. Persuasion and Participation
In order to characterize deliberative democracy it is
easier to begin with a contrast. A pluralist or interest
group understanding of democracy takes legitimacy to be a
function of majority decisions, and voting procedures to be
mechanisms for the aggregation of preferences. Here the
Schumpeterian view of politics as a struggle among
interest groups for scarce social resources, and of law as a
commodity subject to the forces of supply and demand,
comes to mind.6 In this view, parties compete for the
loyalty of citizens, and the ultimate aim of politics is not
understood in terms of an equitable distribution of power
and benefits, but rather, in terms of the accurate
representation in the legislation of the various inputs.7
5. For recent work, see, e.g., Deliberative Democracy (James Bohman &
William Rehg eds., 1997); Deliberative Democracy (Jon Elster ed., 1998).
6. Joseph Schumpeter, Capitalism, Socialism, and Democracy (1942).
7. Cass Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539, 1542-43

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In a nutshell, the contrast between aggregative

liberalism and deliberative democracy lies in the latters
idea that the legitimacy of law depends not merely on
whether a law has accurately represented a given balance
of interests, but rather on the rational acceptability of a
law to all who are affected by it, where the rational
acceptability can be established only under conditions of
free and open deliberation.8
Deliberative democracy, then, takes persuasion and
participation to be at the core of politics. Whereas
aggregative liberalism sees politics as a mechanism of
compromise-formation among parties whose interests
conflict, deliberative democrats see politics as a means of
rational conflict resolution. Politics is understood
differently both in terms of procedure and aim.
Aggregative liberalism sees politics in terms of bargaining,
deliberative democracy in terms of argumentation. The
former takes the end of politics to be equilibrium among
competing forces, the latter, mutual agreement.9 Each
position focuses on a different moment of the political
process: whereas aggregative liberalism focuses on the
electoral mechanism as the critical moment and
understands it mainly as an ex post facto check on power,
deliberative democracy focuses on the longer term
processes of political opinion and will formation, and in the
exchanges between formal parliamentary arenas and the
(1988). For further analyses and critiques of market liberalism, see Jon Elster,
The Market and the Forum: Three Varieties of Political Theory, in Foundations of
Social Choice Theory 103-32 (Jon Elster & Aanund Hylland eds., 1986); Jrgen
Habermas, Between Facts and Norms ch. 7 (William H. Rehg trans., 1996)
[hereinafter BFN].
8. See BFN, supra note 7, at 110.
9. Deliberative democracy needs, and expresses, a vision of the
transformative effects of deliberation. Unlike interest group democrats,
deliberative democrats argue that preferences ought not to be taken as given, that
they are subject to transformation by means of deliberation (among others).
Without this transformative possibility, deliberation would stalemate and then
collapse, under the pressure of the need to arrive at timely decisions, into another
form of aggregation.
See, e.g., Cass Sunstein, Democracy and Shifting
Preferences, in The Good Polity: Normative Analysis of the State 196 (Alan
Hamlin & Phillip Pettit eds., 1989); Robert Goodin, Laundering Preferences, in
Foundations of Social Choice Theory, supra note 7, at 75.

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informal public sphere. This of course, leads to very

different
ideas
concerning
participation:
whereas
aggregative liberalism thinks of participation in weak
terms, both because participation is important infrequently
at best (i.e., during elections), and for limited purposes (i.e.,
to assert interests), deliberative democracy defends a more
robust notion of participation, one that requires a high
level of engagement and whose purpose is, ultimately, to
make the exercise of power rational.10
B. The Epistemic and Normative Grounds of Participation
The general commitment to deliberative participation
and to its transformative potential is in turn justified in
terms of a dual rationale. Part of the justification for
insisting on the importance of participation is epistemic.
For a broad range of matters deliberative democracy
endorses the view that each person has a defeasible
epistemic privilege concerning what is good for him or
her.11 While it is crucial to keep firmly in mind the
defeasability of this privilege, whatever doubts one may
have about this position, that it contains a kernel of truth
is particularly clear when given a negative formulation; its
basic insight is that others are in an even worse position
than each of us is to know what is best for us as
individuals.
In the sphere of morality, this epistemic justification of
participation is part of what explains the distinctive
discourse theoretic insistence not just on the importance of
a test of universalizability or generalizability which makes
the validity of norms dependent on their rational
acceptability, but, specifically, its insistence on a dialogical
application of any such test.12
10. See BFN, supra note 7, chs. 7, 8; Amy Gutmann & Dennis Thompson,
Democracy and Disagreement (1996).
11. This view of the individuals epistemic privilege was famously advanced by
J.S. Mill in On Liberty (Gertrude Himmelfarb ed., Penguin Books 1985) (1859).
12. As is well known, Habermas criticizes Kants monological application of
the principle of validity. Habermas adopts McCarthys formulation of the point:

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Moving from the domain of morality to that of politics,

the same epistemic argument provides part of the
justification for the participatory aspect of deliberative
democracy.
It seems true, generally speaking, that
allowing those who are affected by a norm to participate in
the discussions in which its validity is determined might
increase the possibility that the decision will be reached on
the basis of accurate and relevant information. Since
discourse theory places great stock on the difference
between rational consensus and de facto agreement, and
hence reaffirms the importance of conditions of discursive
symmetry and openness, the epistemic rationale for
participation appears particularly compelling: it seems
reasonable to think that as long as people are allowed to
express their own positions freely, and assuming that
everyone is sufficiently reflexive to open up his or her
claims to discursive examination, the norms that are
agreed to under such circumstances would be norms that
are reasonably in the interest of all. This is critical in the
domain of politics, for after all, political questions have to
do with the common good. Here again, the point is
particularly persuasive in its negative formulation: if the
only way of securing support for a norm is by excluding
from consideration some of those affected by it, then we
have reason to question the legitimacy of such a norm.13
Rather than ascribing as valid to all others any maxim that I can will to be
a universal law, I must submit my maxim to all others for purposes of
discursively testing its claim to universality. The emphasis shifts from
what each can will without contradiction to be a general law, to what all
can will in agreement to be a universal law.
Thomas McCarthy, The Critical Theory of Jrgen Habermas 326 (1978).
Of course, this merely expresses that participation is a better procedure than
solitary reflection, without explaining why. The explanation offered is the
following: For one thing, nothing better prevents others from perspectivally
distorting ones own interests than actual participation. It is in this pragmatic
sense that the individual is the last court of appeal for judging what is in his best
interest. Jurgen Habermas, Discourse Ethics: Notes on a Program of
Philosophical Justification, in Moral Consciousness and Communicative Action 67
(Christian Lenhardt & Shierry Weber Nicholsen trans., 1990) [hereinafter
Habermas, Discourse Ethics]. Note bene the for one thing in the citation. This
epistemic reason is only one of the grounds of participation.
13. I have put this argument to use in the construction of a deliberative

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Democracy then, is defended as a mechanism that

increases the likelihood of coming to reasonable decisions,
not merely to points of equilibrium between competing
interests each of which is taken as given.14
It is important to see, however, that the epistemic
rationale is not the only ground on the basis of which the
deliberative democrat defends participation. If it were, the
argument in favor of participation would be undermined by
recalling the opacity of our own impressions of what is best
for us, especially concerning long-term interests and issues
that require complex coordination with others.15 The other
part of the discourse-theoretic defense of participation is
more explicitly normative in spirit, and it corresponds to
the conception of human worth of modernity, still revealed
in our context by Rawlss description of individuals as selforiginating sources of valid claims,16 but famously
articulated in Kants notion of autonomy, understood as a
form of self-governance. So, the first, more epistemic part
of the discourse-theoretic defense of participation captures
the intuition that moral validity is not divorced from
correctness (and that universalizability is the relevant
standard of correctness here). The second and more
normative part of the defense captures the intuition that in
morality it matters not only that norms be correct (or
democratic defense of group representation in my Deliberative Democracy and
Group Representation, 26 Soc. Theory & Prac. 3 (2000).
14. So, for instance, Habermas asks What gives the democratic procedure its
legitimating force? And he answers: democratic procedure makes it possible for
issues and contributions, information and reasons to float freely; it secures a
discursive character for political will-formation; and it thereby grounds the
fallibilist assumption that results issuing from proper procedure are more or less
reasonable. BFN, supra note 7, at 448. Carlos Nino presents an even stronger
epistemic defense of democracy both in The Ethics of Human Rights, supra note
2, ch. 7, and in The Constitution of Deliberative Democracy ch. 5 (1996). Perhaps
the best know recent epistemic defense of democracy is David Estlunds in his
Making Truth Safe for Democracy, in The Idea of Democracy 71 (David Copp et
al. eds., 1993).
15. See, e.g., Gerald Dworkin, Paternalism, in Morality and the Law 107
(Richard Wasserstrom ed., 1971); Richard Arneson, Paternalism, Utility and
Fairness, 170 Revue Internationale de Philosophie 409 (1989).
16. John Rawls, Kantian Constructivism and Moral Theory, 67 J. Phil. 515,
543 (1980).

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valid), but also that they be our own. Similarly, in the

domain of politics, at least of democratic politics, it matters
a whole lot not only that we live under sound laws, that is,
under laws that promote our interests, as each group sees
those interests from its own perspective, but also that we
live under laws of which we can consider ourselves to be
the authors.
C. Idealizations
The commitments to persuasion and to participation
can of course be spelled out in further detail. Without
going as far as the articulation of rules of argumentation,17
one can unpack these commitments in terms of the
following non-exhaustive list of ideas: (a) Deliberations
must be inclusive and public. (b) Deliberations must be
free of any external or internal coercion. (c) It must be
possible to deliberate about the interests and wants
expressed within deliberations. (d) Deliberations aim at
rationally motivated agreements.18
The question is, what is the status of these ideas?
Obviously, they are not offered as descriptions of actual
practices. All actual political discussions exclude some
persons to some degree or another, no discussion is
completely free of coercion, participants rarely exhibit the
degree of self-reflection required, let alone of tolerance
towards the public examination and criticism of their
wants and interests, and it is not clear at all that many
actual discussions aim at anything more than gaining
strategic advantage. So, the abiding commitment to the
ideas of persuasion and participation on the part of
deliberative democrats can be said to express regulative
ideals. That is, persuasion and participation are
counterfactual notions that nevertheless regulate our
practices, by offering critical standards against which to
17. See, e.g., Robert Alexy, A Theory of Legal Argumentation (Ruth Adler &
Neil MacCormick trans., 1989).
18. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in The
Good Polity, supra note 9, at 49.

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measure what we do.

However, that is not all these ideas do. The claim is
that in addition to providing the grounds of criticism, these
ideas already structure our practices. Persuasion and
participation are counterfactual in the sense that they can
never be fully realized (e.g., it is impossible to eliminate all
power differentials from real contexts of deliberation). But
that does not mean that the ideas are completely
counterfactual. As a matter of fact, we organize practices
and institutions as if it were possibleand indeed, in order
to make possibleinclusive, coercion-free, reflective
deliberations aimed at rationally motivated agreements.
This dual, regulative and constitutive role is what the term
idealization is meant to capture.19
D. Non-Reductionism
Finally, a viable theory of deliberative democracy must
leave room for non-moral reasons in its account of
legitimacy. This is important for two reasons. First, this
seems to be required if we are going to acknowledge the
differences between morality and law. Moral norms are
defensible on the basis of moral reasons alone, that is, of
reasons that can be universalized. Legal norms, however,
are different: while they must not conflict with moral
norms, they are defended on the basis of reasons that refer
to practical constraints and to particular community goals
and values. We enact laws not only because we consider
certain norms to be right, but because we want to achieve
certain ends.
This acknowledgment of the variety of reasons that go
into the legitimation of law, in turn, helps avoid the
subordination of law to morality, one of whose
consequences is that the role of democracy as a
legitimating procedure would be obscured.
If the
legitimacy of laws were sufficiently established in terms of
19. See William Rehg, Insight and Solidarity: The Discourse Ethics of Jrgen
Habermas 64-65 (1994); David Hoy & Thomas McCarthy, Critical Theory 38-42
(1994).

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their coherence with moral norms, democratic procedures

would become superfluous, and legitimate law-making
could proceed deductively starting from moral principles.
This point will become useful later on for clarifying the
relationship between a (political) theory of democracy and a
(moral) theory of punishment.
II. DELIBERATION AND COERCION
The interest of some theorists of deliberative
democracy in the coercive aspects of legitimate law comes
through in different ways.
Carlos Nino, one of the
exceptions among deliberative democrats in having
addressed issues of punishment directly, thinks that from
the principle of moral autonomy we can derive a series of
intersubjective moral standards proscribing such acts as
killing, injury, rape, etc., as well as permissive norms
allowing coercion under certain conditions, in order to
enforce those standards.20 I will not deal at length with
Ninos position on punishment here, among other reasons
because he still wants to ground a theory of punishment on
moral premises alone, thus leaving no clear role for his
account of democratic legitimacy. The fact that his theory
of punishment rests on the notion of consent does not
change this. The consent that is crucial to his position is
not the sort of consent that matters to theorists of
deliberative democracy, but rather, the broader consent, or
license, that individuals give to the implications that follow
from their acts under a system of rules.21
In Habermass case, the interest in the coercive
dimension of law stems ultimately from his efforts to do
political theory in a way that avoids the sociological naivete
of normative, philosophical theories of politics and law.
This interest can be seen, among different places, in his
analysis of the functional complementarity between
20. The Ethics of Human Rights, supra note 2, at 141.

21. See A Consensual Theory of Punishment, supra note 2; The Ethics of
Human Rights, supra note 2, ch. 8.

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morality and law.22 The argument here is that law makes

up for the cognitive, motivational, and organizational
deficits that afflict modern, universalistic morality:
morality does not always tell us how to act in particular
circumstances, does not always provide us with sufficiently
strong motivation, and does not always help us coordinate
our actions effectively. Law makes up for these deficiencies
by (a) spelling out in detail relevant norms, decision
procedures, and competent judicial agencies; (b) redrawing
the calculus of losses and gains, making certain classes of
actions punishable; and (c) establishing organizational
measures that lend a degree of efficiency to our attempts to
carry out complex social tasks.23 In this analysis of the
relationship between morality and law, not only the
positive, but the coercive character of law plays an
important role.
More generally (and from the standpoint of common
sense, not surprisingly) most deliberative democrats,
including Habermas, think that the legitimacy of law
hinges not only on its normative validity, but on its efficacy
as well, and that its efficacy is owed, at least in part, to the
fact that law can be backed by the coercive power of the
state.24
So, what explains the reluctance on the part of
Habermas and most other theorists of deliberative
democracy to engage the topic of punishment directly,
despite their interest in the coercive dimension of the law?
Perhaps that reluctance is a result of the non-reductionistic
account of the legitimacy of law offered by discourse theory,
and sketched briefly above. In an effort to avoid the
subordination of law to morality, this account of
deliberative democracy acknowledges that pragmatic and
ethical reasons play an important role in the process of
legitimating laws.25 It might then be that punishment is
22. BFN, supra note 7, at 104-18.
23. Id. at 146.
24. See, e.g., id. at 448.
25. See id. at 157-68. This represents a refinement of an earlier
undifferentiated position according to which the validity of all norms depends on

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one of those topics that belongs in the ambit of expediency

or prudence alone. Were this the case, the reluctance on
the part of a discourse theoretic account of law to offer
sufficient specifically moral constraints concerning which
theory of punishment ought to be adopted would be
justified.26
But this is not a good argument, for three reasons.
First, if there is any area of the law where moral
constraints need to be perspicuous, it is in the sphere of
punishment.
I take it this does not require much
elaboration. Recalling that what is at stake in the sphere
of penal law is the fundamental rights of citizens should be
sufficient. Second, it is not clear that a non-reductionistic
account of legal legitimacy calls for an equally nonreductionist account of the justifiability of punishment. It
would be plausible, for instance, to adopt an account that
makes punishment permissible for moral reasons alone
within a general framework according to which laws,
including penal laws, are to be enforced only if their
application is overdetermined. In other words, it is not
absurd to think that whereas punishment is permissible on
the basis of moral reasons alone, it is advisable only when
it serves not just moral but, say, communal and pragmatic
ends as well. Finally, there are of course some nonreductionistic accounts of punishment that may cohere well
with a non-reductionistic general account of law.
Could it be that the reluctance to engage the question
of punishment directly stems from the suspicion that
adopting a particular position on the morality of
punishment would violate the procedural nature of most
theories of deliberative democracy? This calls for two
the satisfaction of a principle of universalization. See, e.g., Jurgen Habermas,
Discourse Ethics, supra note 12. Habermass early discourse ethics was criticized
for its failure to lead to an acceptable conception of legal legitimacy, precisely
because that earlier position did not acknowledge the importance of pragmatic
and ethical considerations in the justification of law. See Kaarlo Tuori, Discourse
Ethics and the Legitimacy of Law, 2 Ratio Juris 125 (1989). I track the changes
in Habermass account of the relationship between morality and law in my
Habermas on Nationalism and Cosmopolitanism, Ratio Juris (forthcoming 2002).
26. I had useful conversations with Tom McCarthy about this point.

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comments. First, the term procedural is ambiguous, and

this complicates matters.
A theory of deliberative
democracy can be called procedural, in contrast with
substantive if it places no constraints, especially
normative constraints, on the operation of democratic
procedures.27 Most recent theories of deliberative
democracy are not procedural in this sense.28 In particular,
the Habermasian position that I am taking as my starting
point, explicitly incorporates a moral interest in individual
autonomy in the very definition of democratic legitimacy.29
Granted, Habermas resists the natural law subordination
of law to morality, but he resists with equal vigor the
positivist attempt to excise morality from law. So, the
procedural is intended to denote a focus on procedures
and institutionsassuming that among other ends, these
procedures and institutions will serve moral ends, primary
among them, the protection and promotion of the autonomy
of individuals. Consequently, there is nothing intrinsically
objectionable in a procedural theory of democracy adopting
a particular position on the purpose of punishment.
The second comment should help clarify the general
relationship between a political theory of democracy and a
moral theory of punishment. A proceduralor better,
institutionaltheory of democracy is not a free-standing or
complete theory of politics, let alone of society. At some
point, a theory that focuses primarily on institutions will
need to be complemented by accounts both of culture and of
the choices of individuals.
So, even if a theory of
punishment, considered in a traditional way as part of
27. See, e.g., Brian Barry, Is Democracy Special, in Philosophy, Politics, and
Society 155-56 (Peter Laslett ed., 1956), where he writes:
I follow . . . those who insist that democracy is to be understood in
procedural terms. That is to say, I reject the notion that one should build
into democracy any constraints on the content of outcomes produced, such
as substantive equality, respect for human rights, concern for the general
welfare, personal liberty and the rule of law.
28. See, e.g., Gutmann & Thompson, supra note 10.
29. See Kenneth Baynes very useful Democracy and the Rechtsstaat:
Habermass Faktizitt und Geltung, in The Cambridge Companion to Habermas
201, 214-15 (Stephen K. White ed., 1995).

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moral theory, is, arguendo, intended merely as a guide for

individual moral choice, this, in itself, need not make it
anathema to a procedural theory of democracy. Even if a
theory of deliberative democracy succeeds in providing an
account of the legitimizing force of democratic procedures,
that theory will offer no guidance to citizens in their
choices concerning the constitution and the operation of a
penal system. In order to provide such guidance, a
comprehensive theory of politics and of society would need
to incorporate a theory of punishment. Hence, a theory of
punishment that guides the moral intuitions which in turn
guide individuals choices concerning institution building,
is a proper part of a broad theory of deliberative democratic
politics.
Of course, this argument does not favor a particular
theory of punishment, expressionist or not. But a broad
theory of politics will aim at a certain coherence which in
this case leads to the reasonable expectation that the
considerations that guide individual choice and those that
are expressed in the institutions and laws by which
individuals live will be related to one another. In this
specific context, this means that the idea of persuasion,
which is critical for the institutional account of politics
provided by deliberative democracy, has to figure also in
whatever account of individual moral choice adopted. So, if
the idea of persuasion is important in the adoption of a
theory of punishment, this in itself provides some
constraints against purely retributivist or purely
consequentialist accounts of punishment.
Since my interest lies in providing a positive argument
to explain why a deliberative democrat should adopt an
expressionist account, rather than a negative argument
why retributivism or consequentialism should not be
adopted, I will be brief. The central idea is the following:
both retributivism and consequentialism run afoul of the
central commitment to persuasion. While retributivism
may be insufficiently attentive to the idea that the rational
acceptability of law rests also on its pragmatic efficacy,
consequentialism may be insufficiently attentive to the

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other side of legitimacy, namely to the idea that the

rational acceptability of law rests also on its normative
validity. Thus, there are retributivisms that may require
us to punish even when there are strong considerations
against doing so. This is especiallybut not exclusively
true of the sort of positive retributivism described by
Braithwaite and Pettit, which argues that (1) anyone found
guilty of a crime must be punished for it, and (2) that
punishment must not be less than of a degree
commensurate with the nature of the crime and the
culpability of the criminal.30 This sort of retributivism
frequently finds expression in mandatory sentencing laws,
and it may be attractive to some as a reaction to crime
when the issue is considered in isolation from the broad
context in which criminal laws always operate. Some of
these laws are arguably insufficiently sensitive to the
teleological dimension of law, being upheld long past the
point where they can show their benefits. This may be said
of mandatory sentencing laws for small-scale first-time
drug offenders. In a different context, the problem with
positive retributivism can be seen in the expectation that
after a transition to democracy all of the human rights
violators of the predecessor regime should be punished,
regardless of the threat to the democratic transition itself.31
On the other hand, deliberative democrats also have
reasons to be suspicious of consequentialist accounts of
punishment, to the extent that for the deliberative
democrat it is important not just that laws be effective in
redrawing the balance of benefits and burdens against
criminal activity, but that the law be persuasive on the
30. Braithwaite & Pettit, supra note 2, at 34-35. More generally, the problem
may arise from a common interpretation of the basic retributivist commitment
that the moral desert of an offender is not only a necessary, but a sufficient
reason to punish her. This commitment is usually interpreted as giving rise to a
duty to punish, and to do so without regard for other sorts of considerations. See,
e.g, Michael S. Moore, The Moral Worth of Retribution, in Responsibility,
Character, and the Emotions 179, 179-82 (Ferdinand Schoeman ed., 1987).
31. See Pablo DeGreiff, Trial and Punishment; Pardon and Oblivion: On Two
Inadequate Policies for the Treatment of Former Human Rights Abusers, 2 Phil.
& Soc. Criticism 93 (1996).

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basis of considerations of justice as well.

III. DELIBERATION AND EXPRESSIONISM
As it turns out, there is a relatively straightforward
way of establishing connections between a deliberative
account of morality and law on the one hand, and a theory
of punishment on the other. There is a sort of expressionist
account of punishment that shares the four fundamental
characteristics that I attributed to a deliberative conception
of democracya commitment to the ideas of persuasion
and participation, defended from an epistemic and a
normative point of view, understood as idealizations, and
articulating a non-reductionistic position.
Now, theories that take the evil inflicted on the person
punished to be the expression of an important social
message, or in other words, talk about punishment as
language are not new. But not all expressionist positions
have affinities with the sort of deliberative democracy at
issue here. Durkheim, for example, offered an expressionist
account according to which punishment is a sort of
language that expresses feelings of disapproval and which
helps to reconstitute the solidarity of a moral community.32
However, Durkheims emphasis on punishment as the
expression of feelings, by itself, makes his expressionism an
unlikely match for more hard-headed cognitivist accounts
of deliberative democracy. Instead, we need a version of
expressionism that takes punishment to communicate a
judgment. Furthermore, it would be an even better match
if the theory would take punishment to communicate a
judgment, not merely in the sense that it enunciates a
judgment about the offender, but in a sense that it involves
the offender in a process of communication in which
ultimately, even the punishment is seen as a part of a
rational expression.
32. Emile Durkheim, Moral Education, (Everett K. Wilson ed., Everett K.

Wilson & Herman Schnurer trans., 1961).

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A. Persuasion and Participation

Duffs expressionism is an attempt to work out the
implications for punishment of what he calls the Kantian
principle. This principle, which mandates treating other
persons in ways that respect their autonomy, is also at the
heart of different accounts of deliberative democracy,
including Ninos and Habermass.
According to the
Kantian principle:
[t]o respect another person as a rational and autonomous
moral agent is to treat him and respond to him as one who
is able, and should be allowed, to conduct his own life and to
determine his own conduct in the light of his own
understanding of the values and goals which command his
allegiance.33
Like all Kantian positions, Duffs expressionism also

generates an important distinction between rationally
persuading and manipulating. Indeed, it takes respect to
be fundamentally manifested in reason-giving.34
His
analysis of the justifiability of punishment starts off with
an analogy between punishment and moral blame. This
analogy suits the general cognitivist aims of this form of
expressionism only because of the prior adoption of an
account of moral blame that is as cognitivist, and as
dialogical, as discourse ethics. On this view, when we
blame someone for something, we claim that there are good
moral reasons why he should have avoided acting as he did.
Obviously, sharing a Kantian background is not
particularly significant. More significant, however, is that
both expressionism and deliberative democracy give a
dialogical twist to this Kantian starting point. So, the
point is not merely that in blaming someone we simply
claim that there are moral reasons why he should have
avoided acting as he did, but that we offer those reasons to
him. In blaming someone we engage him in a moral
33. Duff, supra note 4, at 6.
34. Id. at 50.

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discussion whose aim is to get him to accept our judgment

on his action.35
For cognitive expressionists, this process of moral
argumentation is as fallible as it is for discourse ethicists.
After all, the other may remain unpersuaded by my
arguments. Moreover, I must always be prepared to be
persuaded by him to modify my original judgment on his
conduct. In summary, expressionisms commitment to
persuasion and participation can be seen initially in its
endorsement of the idea that since the aim of blaming is
not merely to get people to change their behavior, but to do
so for the right reasons, the aim is not satisfied unless I
persuade [the other] (by a process of moral argument
which seeks his understanding and acceptance of relevant
moral reasons) to judge his past conduct and guide his
future conduct by those moral standards which inform my
criticism of him.36
So far, what has been described is the cognitivism and
dialogical character of the account of moral blaming
adopted by expressionism. But why should this be
considered significant? After all, this account was meant to
provide only a term of an analogy which can be nothing
more than the starting point of an account of punishment.
But the same commitment to the ideas of persuasion and
participation can be found in the expressionist account of
trials.37 Expressionism shares with most versions of
35. Although Duff wavers occasionally on this point, this dialogical account of
blaming should not be construed simply as an analysis of the meaning of blaming,
for there is a sense of blaming that just means to hold responsible for a misdeed
which is not dialogical at all. This sense is evidenced by our readiness to blame
people we regard as incorrigible, as well as offenders we cant speak to (e.g., the
dead). Duff is more accurate when he says that focusing on the activity of
blaming someone to her face allows us to see connections between this practice
and the criminal process. See e.g., id. at 39-40. I had a useful conversation about
this point with Leif Wenar.
37. The fact that expressionism makes moral persuasion central to trial
procedures does not necessarily subvert the Kantian distinction between morality
and law. Here a differentiated account of moralitysuch as Habermasswhich
distinguishes the ethical from the specifically moral, can help expressionism. I
will return to this point. In any case, the centrality of persuasion in trial
procedures leaves untouched the possibility that citizens may obey the laws either

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deliberative democracy an interest not only in the moral

dimension of law, but in its procedural aspects as well.
More strongly, both theories share the view that the moral
and the procedural dimensions of law are inseparable. For
both, the legitimacy of legal procedure ultimately should be
understood in terms of participation. According to
expressionism, what makes a trial, specifically, distinct
from other judicial or psychiatric inquires, is that the
defendant should participate in his trial: he is called to
answer the charges laid against him.38 Whereas in
psychiatric examinations, for example, the offenders
participation is required merely for the sake of reaching a
judgment which is passed on him or her, in a trial the
offenders participation is more important and of a different
nature.39
B. The Epistemic and Normative Grounds for Participation
Part of the reason why expressionists insist on the
importance of the defendants participation in trial is of
course epistemic: one of the aims of trials is to determine
facts accurately, and the likelihood of achieving this aim is
ordinarily increased if the defendant participates in the
procedure. But reaching accurate verdicts is only one aim
of trials, and it is an aim that does not always call for, or
that is well served by, the defendants participation. The
significance of the defendants participation in a trial
cannot be reduced to epistemic considerations alone. For
instance, a court that refuses to hear a defendant is unjust
for moral or for pragmatic or prudential reasons. A conversation with Klaus

Gnther, as well as comments from Ciaran Cronin, helped me clarify this issue.
39. The emphasis that the expressionist account of trials places on the
defendants participation is not meant to undercut the importance of the rights
that defendants have not to participate actively in their trials. Even in these
cases, however, the procedures have to be structured as if the defendant were
participating. In other words, the basic aim of the trial, to offer reasons that
could persuade the offender and others, remains unchanged in those cases in
which the defendant chooses not to participate. I am grateful to Guyora Binder
and Klaus Gnther for raising this issue.

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to her in a way that goes beyond the failure to use

procedures, testimony, and evidence likely to increase the
epistemic certainty of the verdict. That court is unjust in a
sense independent from epistemic considerations: it is a
court that failed to assign to the defendant the status in
the trial she is owed, namely, that of participant. As Duff
puts it, [t]he aim of the trial is not just to make an
accurate determination of the facts, as a basis for further
decisions about the defendants disposal, but to engage with
the defendant in a rational process of argument and
judgment.40 That is to say, participation here is required
for normative reasons: the process of achieving justice is
one that requires the participation of defendants because
justice requires respect for the autonomy of agents, and
respect is manifested in participatory processes of reasongiving.
C. Idealizations
The sort of respect expressed in the reason-giving at
issue here is one that ideally, as has been said, would lead
the defendant and the publicincluding the victims of
crimeto be persuaded of the judgment that the trial
makes of the criminals behavior, and this means that they
would be persuaded of the relevance and the
appropriateness of the standards by which his behavior
was judged. Ideally, again, the process would lead to the
defendant and the others being persuaded also about the
fairness of the punishment imparted. Needless to say, this
account is not meant as a description of our actual
practices. The commitment to persuasion and to
participation that it expresses has the same status of
idealizations that this commitment had in the case of
deliberative democracy. On the one hand, it is plain that
these are counterfactual ideals that serve mainly to
criticize our existing practices. Thus, trials in which the
defendants participation is unduly restricted thereby

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weaken their claim to justice. Similarly, practices of

punishment such as forms of incarceration that brutalize
either through physical abuse or through enforced,
prolonged idleness cannot be claimed to be tools of rational
persuasion, and to that extent, are not legitimate forms of
punishment. On the other hand, the commitment to
persuasion and participation is not a mere regulative ideal,
but an idea that already informs our practices. As is
revealed by the strong reservations awakened by courts
that refuse to hear defendants, or by trials in absentia,
certain expectations about the defendants participation
actually structure our practices.
D. Non-Reductionism
Recall that I argued that a defensible account of
deliberative democracy had to recognize that in the process
of legitimating laws, non-moral reasons ordinarily and
quite appropriately play a role. Since punishment in the
sense at issue here is a part of legal procedures, the fit
between deliberative democracy and an account of
punishment would be closer if the latter were not unduly
reductionistic. The sort of expressionism defended here
satisfies this requirement: it does insist that serious
immorality is a necessary condition for punishment, but, it
recognizes that in addition to the moral persuasion of
offenders, blame and punishment may serve other social
ends such as deterrence. Indeed, expressionism articulates
a sophisticated relationship with deterrence. For the
expressionist, deterrenceat least by itselfdoes not
justify punishment, but that does not mean that
expressionists are indifferent to the potential deterrent
effects of punishment. They hold that punishment is
justified as a way to prevent wrongdoing insofar as it can
teach both wrongdoers and the public at large the moral
reasons for choosing not to perform an offense.41 So, for
instance, Hampton, who calls her expressionist position
41. Hampton, Moral Education, supra note 4, at 213.

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the moral education view holds that the state is not

concerned to use pain coercively so as to progressively
eliminate certain types of behavior; rather, it is concerned
to educate its citizens morally so that they choose not to
engage in this behavior.42
While this form of expressionism is not reductionistic,
it does impose some of the constraints imposed by
retributivist theories: the account obviously does not
approve, for instance, any attempt to gain deterrence
advantages at the expense of individualseither by finding
the innocent guilty, or punishing the guilty more than is
deserved. For the expressionist, in trying offenders we
appeal to their understanding and engage them in a
process of rational argumentation.
The means of
expressing our disapproval, are, in the legal process, as
internally related to their ends as in the moral process of
blaming. In both cases, to the extent that we recognize a
distinction between persuasion on the one hand, and
manipulation or conditioning on the other, the end of
persuasion itself constrains the means that can be used to
achieve it. Hence, this position is still broadly and weakly
retributivist for it takes blame and punishment to be
meaningful and justified by instances of wrongdoing. But
note that this form of retributivism is not completely
backward-looking: whereas blame and punishment are
motivated by wrongdoing, both are essentially goal-directed
activities aiming at persuading someone about the
wrongfulness of his or her conduct.43
The goal-directed nature of punishment should make
this account appealing to those who share the conviction
that on the one hand, evil is strictly speaking, irreparable,
but that on the other, it calls for some response, and that
42. Id. at 214.
43. Robert Nozick examines, and then rejects an expressionist position of this
sort in his Philosophical Explanations 363-97 (1981), where he calls this position
teleological retributivism. John Braithwaite and Philip Pettit talk about this
position as a sort of target-retributivism. They object that the teleological
aspect of this position raises questions about its status as a form of retributivism.
I concede the objection, and hence call this position retributivist only in a weak
sense. See Braithwaite & Pettit, supra note 2, at 48-52.

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that response should not amount to mere vengeance.

Needless to say, the process of blaming and punishing
others cannot undo evil. Nevertheless, it should be guided
by the possibility, among others, of transforming the
offenders understanding of his actions and of giving in this
way a measure of recognition to the victim as well.
IV. THE PROBLEM WITH PUNISHMENT
The aim so far has been the modest one of helping
discourse theorists to an account that would allow them to
address some of the fundamental questions concerning
punishment, something that a comprehensive theory of law
and politics should be able to do. Needless to say,
establishing these affinities will prove to be beneficial only
if the account of punishment with which relations are being
established is a strong one.
Whether expressionism is a strong theory of course
depends on what one expects a theory of punishment to
accomplish. If what one expects such a theory to do is to
sanction our current punitive practices, then expressionism
is a notoriously weak theory. Unfortunately, it has been
claimed that even on a different standard of strength,
expressionism is an unacceptably weak theory, for it does
not succeed as a justification of punishment.
As suggested above, expressionism offers an attractive
account of moral blaming and of trials, an account that
takes moral persuasion to be both inherent to, and the
ultimate end of, legal processes. It offers compelling
reasons in favor of institutionalizing trial procedures that
take seriously the rationality and autonomy of offenders.
Similarly, it is most persuasive about how the requirement
to respect the rationality and the autonomy of the convicted
criminal rules out certain forms of punishment that would
be clearly incompatible with persuasion, even in its loosest
interpretation.
But the question remains: even if it is granted that
expressing condemnation is at the heart of punishment,
what is the connection between the expressions of

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disapproval and the punishment? More specifically, why

does the disapproval have to take the form of punishment?
In the paper that motivated a good part of the recent
interest in expressionism, Joel Feinberg distinguishes
between the condemnatory and the specifically penalizing
aspects of punishment.44 Theorists have tried to establish
the link between condemning and penalizing in different,
but not altogether successful ways. The three leading
strategies are the following: first, Duff has argued that
punishment can be thought of as compulsory penance, that
is, as an aid for inducing repentance in the offender, which
thus reintegrates him into the moral community that he
abandoned through his crimes.45 The heavy burden that
this strategy has to carry is to make plausible the claim
that a coarse method of punishment like incarceration is
most conducive to repentance, especially in the case of the
worst offenders, who are the most deserving recipients of
punishment.
The second expressionist strategy for linking
condemnation and penalization is provided by Hampton.
In her paper on the moral education theory of punishment,
Hampton argues that punishment clearly expresses
prohibition, and that this is the first stage of a learning
process. Unfortunately, she then digresses and never
explains why punishment helps to teach not only the bald
lesson that certain conduct is prohibited, but the moral
lesson that there are good reasons for such prohibition.46 In
her later work Hampton argues that one can think of
criminals as making, through their actions, a claim that
their own value is superior to that of their victims.47 So,
44. Joel Feinberg, The Expressive Function of Punishment, in Doing and
Deserving: Essays in the Theory of Responsibility 95 (1970).
45. See Duff, supra note 4, at 246-62 (linking his position with a religious
conception of penance).
46. See Hampton, Moral Education, supra note 4, at 223-30.
47. As she puts it,
those who wrong others . . . fail to realize or else do not believe that others
values rule out the treatment which their actions have accorded them; and
they incorrectly believe or implicitly assume that their own value is high
enough to make this treatment permissible. So criminals send a message

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she proposes that punishment should be understood as an

attempt to correct the false claim made by the offender.
The way to correct this claim is to defeat the wrongdoer at
the hand of the victim (or through an agent of the victim,
e.g., the state). How does this help to establish the
connection between reprobation and punishment? In her
words, pain conveys defeat.48 The problem, however, is
that as Hampton acknowledges, defeat can be conveyed
through different means, some of which do not involve
punishment in the traditional sense.
Finally, another way of establishing the link is by
arguing that punishment translates the condemnatory
message into a language that criminals are likely to
understand. The view is the following:
Merely verbal condemnation is not likely to reach its
addressee and to be fully understood by him. Regrettably,
although perhaps not surprisingly, many criminals are
oblivious to mere words. They do not care for the standards
of society; otherwise they would not be committing crimes.
They are lacking in respect for others; otherwise they would
not be violating their rights. They are deficient in human
sympathy; otherwise they would not be harming others.
But they are endowed with as lively an appreciation of their
own interest as is everyone else.
So if societys
condemnation of their misdeeds is really to reach them, if
they are really to understand how wrong their actions are, it
will have to be translated into the one language they are
sure to understand: the language of self interest. This
translation is accomplished by punishment.49
For a view that seeks to provide a moral justification

for punishment, however, this one seems to rely too heavily
on two mistaken assumptions: (1) that the societies in
which crime takes place are fair, and (2) that criminals are
when they behave immorally: implicit in their wrongdoings is a message
about their value relative to that of their victims.
Hampton, A New Theory of Retribution, supra note 4, at 397.
48. Id. at 399.
49. Igor Primoratz, Punishment as Language, 64 Phil. 187, 199-200 (1989).

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as myopically self-interested as our stereotype suggests

(hence the harshness of the description of the criminal).
But since what is ultimately at stake in the attempt to
establish a link between condemning and penalizing is
precisely the justification of punishmentfor without this
link expressionism provides a wonderful account of
blaming and reproving, but not of punishingforging the
link on the basis of dubious assumptions and questionable
stereotypes weakens the position significantly.
Let me go back to Feinberg to clarify the problem
further. Feinbergs interests lie in the proper
understanding rather than the justification of punishment.
To get at the heart of punishment he suggests considering
the difference between penalties and punishment. In
general, both are, as he succinctly puts it, authoritative
deprivations
for
failures.50
What
distinguishes
punishment, however, is precisely, a certain expressive
function,51 the fact that it expresses a judgment of
disapproval. The expression of this judgment Feinberg
calls condemnation or denunciation. Feinberg argues,
correctly, that in the typical cases of punishment, the two
elements go together, or more exactly, that the unpleasant
treatment
itself
expresses
the
condemnation.
Nevertheless, he insists, again, correctly in my view, that
the reprobative symbolism of punishment and the
unpleasant treatment or the hard work of punishment
are distinct, and that they raise different justificatory
challenges. That they are distinct is shown by the fact that
we can conceive both of condemnation unaccompanied by
any further hard treatment, and of inflictions and
deprivations which, because of different symbolic
conventions, have no reprobative force.52
This gap between punishment and reprobation has
received the bulk of the attention on the part of both critics
and defenders of expressionism. Both sides seem to agree
that the gap needs to be closed. I disagree, for reasons that
50. Feinberg, supra note 44, at 98.
51. Id.
52. Id.

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will be explained presently.

V. EXPRESSIONISM AND DELIBERATION
This is a good point to reverse the dialectical direction
that this paper has followed. Up to this point, my aim has
been to help a particular kind of deliberative democrat
think about a theory of punishment that coheres with her
fundamental philosophical convictions. Now I will argue
that the exchange with deliberative theory can also benefit
expressionism. One of these benefits is that it allows
expressionists to address the question of their justificatory
gap.
It is not that establishing links between expressionism
and a theory of deliberative democracy will allow
expressionists to close that gap. Rather, it gives them
reasons to show why the gap is not undesirable. A nonreductionistic account of legitimacy such as that offered by
the theory of deliberative democracy adopted here, which
provides an account of the manifold reasons that go into
the legitimation of a law, helps explain why it is unlikely,
and ultimately undesirable, that a moral theory of
punishment by itself would suffice to give a full and
adequate account of a practice which in the end needs to
appeal to law as an instrument. This account of legal
legitimacy allows expressionists to remind their critics that
in the legitimation of law, in addition to moral reasons,
ethical and pragmatic considerations always play a role. It
is then no mystery that a moral theory of punishment finds
it difficult to justify legal punishment on its own. Success
on this point would entail the subordination of legal to
moral, and in this case, punitive, ends. But this
subordination is simplistic. It assumes (a) that the moral
rules from which an obligation to punish is derived are
clear and mutually compatible, and (b) that there are no
relevant contextual judgments to be made in the
justification of a practice such as punishment. But both
assumptions are implausible: frequently, we face competing

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moral demands with respect to punishment.53 Similarly,

we frequently acknowledge that our moral interests in
punishment conflict with ethical and pragmatic interests.
In insisting on the relevance of ethical and pragmatic
considerations, the account offered here calls attention to
the importance of such judgments. To put the point in
everyday terms, there is an unavoidably political
dimension to the practice of judgment which is
underdetermined by morality.54
Furthermore, the interaction with a discourse
theoretic account of deliberative democracy can help
expressionist theorists out of some other difficulties they
have encountered. In particular, it has been objected that
accounts of punishment that take punishment to be a
process of moral education will conflict with the supposed
moral neutrality of the liberal state.55 Habermas
differentiated account of morality, which distinguishes
between the specifically moral from the ethical, would be
53. These conflicts can be of various kinds, not only pitting demands for
punishment against demands for leniency, but can also be of the sort that require,
or allow, our punitive responses to take diverse, and mutually incompatible
forms. The complexity of these conflicts is illustrated well in situations of
transitions to democracy, where, for instance, a moral obligation to punish may be
said to conflict with the moral obligation that democratic regimes have of doing
their best to preserve themselves. Similarly, transitional situations generate
important questions about the ways in which punishment ought to be expressed,
if at all. In some of these transitions, a full accounting of the truth may itself
acquire a punitive dimension and be a more effective way of distributing
judgments of responsibility than more conventional punitive approaches. See
Pablo de Greiff, International Tribunals and Transitions to Democracy, 12 Pub.
Aff. Q. 79 (1998).
54. I do not mean political in a pejorative sense, nor merely as shorthand for
expedience. To the extent that we express our sense of communal identity
(among many other things) through politics, there is a strong normative element
to the political. So, for instance, I take Jeffrie Murphys famous argument
according to which although capital punishment is morally justified in some
cases, a civilized society should never impose it, to be a political argument. It
rests on considerations about how we think of ourselves. See Jeffrie Murphy,
Justice, Civilization and the Death Penalty, 14 Phil. & Pub. Aff. 14 (1985); see
also David Luban, Intervention and Civilization: Some Unhappy Lessons of the
Kosovo War, in Global Justice and Transnational Politics (Pablo de Greiff &
Ciaran Cronin eds., 2002).
55. See, e.g., Jeffrie G. Murphy, Retributivism, Moral Education, and the
Liberal State, 4 Crim. Just. Ethics 3 (1985).

DEGREIFFMACRO
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6/4/2002 2:02 PM
helpful here. The sort of moral persuasion that is relevant

in the justification of penal law would not involve the
attempt to persuade citizens about issues concerning
conceptions of the good life, but rather, of what is just, in
the sense of being equally in the interest of all.56
Most importantly, an account of deliberative
democracy would help expressionists out of what I take to
be their greatest difficulty, namely that they need to
connect their position with a broader political theory. The
need for this connection can be seen in the following way:
the analogy between punishment and moral blame on
which expressionists build their position breaks down in
the absence of a theory of democratic legitimacy. While it
is true that the process of moral blame can be appropriately
captured in dialogical terms, that is, presupposing that
blame involves a process of argumentation in which all
parties are willing to accept that they may be wrong, in
order to preserve the analogy with punishment it is
necessary to clarify that point in the legal procedure where
defendants are full partners in discussion in the sense that
they can dispute the validity of the norms under which
they are charged. Obviously, that point is not a court.
Only a theory of democratic politics that gives a discursive
account of processes of law-making can rescue the analogy.
A final point which I would like to make in closing,
although it stands as nothing more that a suggestion, is
that the exchange between expressionism and a broader
theory of democratic legitimacy becomes particularly
56. This of course limits the legitimate application of penal law to a restricted
sphere. Murphy anticipates this response in a footnote to the article cited above.
But he still objects to moral education on the following ground: To mandate
compliance to certain rules does not entail the permissibility of educating persons
so that, in addition to obeying the rules, they will also internalize the rules and
accept the dominant rationale for them. Id. at 17 n.11. I dont know about
internalization. But here again a discourse theoretic understanding of
democratic legitimacy will be helpful, for it insists that laws ought to be
acceptable both for reasons of expediency, as well as for reasons of justice. As
Habermas puts it, legitimate law is compatible only with a mode of legal coercion
that does not destroy the rational motives for obeying the law: it must remain
possible for everyone to obey legal norms on the basis of insight. BFN, supra
note 7, 121.

DEGREIFFMACRO
2002]
6/4/2002 2:02 PM
403
relevant in discussions about international crime. A theory

of deliberative democracy with cosmopolitan aspirations
can play a salutary role in this discussion.57 Most
discussions about international crime up to now have
focused on processes of adjudication and enforcement.
Witness all the energies devoted to discussions about the
establishment of international tribunals not just for human
rights violations, but increasingly, for other types of crimes
as well, including drug-trafficking. What a theory of
cosmopolitan democracy can do is remind the world of the
simple truth that the legitimacy of international law
enforcement rests also on processes of democratic
international law-making that remain largely unexplored.
57. See Jurgen Habermas, The Inclusion of the Other: Studies in Political
Theory (Ciaran Cronin & Pablo de Greiff eds., 1998).


Pablo de Griff Deliberative Democracy and Punishment

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Deliberative Democracy and Punishment

Author(s): Pablo de Greiff

This content downloaded from 64.76.96.21 on Tue, 21 Oct 2014 12:18:06 PM

Deliberative Democracy and Punishment

Abstract. This paper contests the traditional division of

The issue of punishment raises interesting questions

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BUFFALO CRIMINAL LAW REVIEW [Vol. 5:373

perhaps, recognizing that the practice is indispensable.

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DEMOCRACY AND PUNISHMENT

to show how such connections help to fill gaps in each.

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Having tried to help at least some deliberative

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DEMOCRACY AND PUNISHMENT

In a nutshell, the contrast between aggregative

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BUFFALO CRIMINAL LAW REVIEW [Vol. 5:373

informal public sphere. This of course, leads to very

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DEMOCRACY AND PUNISHMENT

Moving from the domain of morality to that of politics,

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BUFFALO CRIMINAL LAW REVIEW [Vol. 5:373

Democracy then, is defended as a mechanism that

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DEMOCRACY AND PUNISHMENT

valid), but also that they be our own. Similarly, in the

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measure what we do.

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DEMOCRACY AND PUNISHMENT

their coherence with moral norms, democratic procedures

20. The Ethics of Human Rights, supra note 2, at 141.

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morality and law.22 The argument here is that law makes

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DEMOCRACY AND PUNISHMENT

one of those topics that belongs in the ambit of expediency

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comments. First, the term procedural is ambiguous, and

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DEMOCRACY AND PUNISHMENT

moral theory, is, arguendo, intended merely as a guide for

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BUFFALO CRIMINAL LAW REVIEW [Vol. 5:373

other side of legitimacy, namely to the idea that the

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DEMOCRACY AND PUNISHMENT

basis of considerations of justice as well.

32. Emile Durkheim, Moral Education, (Everett K. Wilson ed., Everett K.

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A. Persuasion and Participation

Like all Kantian positions, Duffs expressionism also

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DEMOCRACY AND PUNISHMENT

discussion whose aim is to get him to accept our judgment

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