Punishment as Communication

Abstract

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity. In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process. That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him. The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation. Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion—inextricably interwoven with the moral message that is the core of the communication. A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

Keywords: Apology, communication, criminal law, criminal trials, deterrence, impunity, punishment, reparation, responsibility, retributivism

JEL Classification: K14