Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment
30 Pages Posted: 25 Jun 2024
Date Written: June 03, 2024
Abstract
Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception. This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation. According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference. In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort. It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law. But does the turn to victims that the republican theorists envision come at a cost for offenders? On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders. On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality. It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.
Keywords: punishment, penal theory, victims, republican theory, dominion, consequentialism, human rights, restorative justice, re-integrative shaming, penal parsimony, just deserts, criminal law exceptionalism
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