The Authority to Punish in a Non-Ideal World

Hend Hanafy

One of the main questions of penal theory is what justifies the state’s authority to punish. For a long time, this question has usually been posed in the shadow of ideal assumptions about the nature of the state. In its complete form, the question is, “assuming that the state is ideally democratic, just, and well-functioning, what justifies the authority to punish?” The assumptions about the nature of the state were usually deemed out of the concern of penal theory and delegated to the realm of political theory. Matravers notes that penal theorists sometimes advance ‘that the content, source, and nature of the rules that govern a community is a matter for political and moral philosophy’, and on the assumption that these rules are justified, one can proceed to argue for a justification to punish their violation, whether to reduce the incidence of violations or as a response of condemnation, blame, and censure.[1]

Over the past decade, penal theorists have increasingly questioned some of the ideal background assumptions about the nature of the state by exploring the justification to punish when the state is not just or well-functioning. This is seen in the scholarship on punishment in contexts characterised by social injustices or in relation to criminogenic disadvantages.[2] This post aims to contribute to this line of thinking by scrutinising the assumption of contextualising the authority to punish in an ideal democratic state. It discusses the role of democracy in penal theory and how approaching punishment in a non-ideal world might open new questions for research.

Punishment & Democracy

While punishment is typically seen as an apolitical or moral institution that responds to crimes and rules violations, the role of democracy in penal theory comes from the place of punishment as an intrinsic and essential part of the state’s political authority. To clarify this claim, there is a need to consider the meaning of authority, its normative claims, and how they relate to punishment.

Authority is a relational concept; it supposes the existence of a dominant and a subordinate where the dominant has power or influence over what the subordinate can and cannot do.[3] One can follow Thorburn in characterising authority as consisting of three normative claims; a ‘power to make law’, an ‘exclusive right to determine the content of the law’, and the ability or ‘some remedy to address violations’ of the exclusive claim to authority.[4] The first claim concerns the power to create rules that determine and change what subordinates are entitled to do, their rights, powers, liabilities, and obligations.[5] This is the most common view of identifying authority as power over ‘people’s fate and their choices or options’ and ‘the ability to influence or control the actions of others’.[6]

The second claim concerns the exclusive power to determine the content of the law. The emphasis here is not on what the law can and cannot include, but on excluding subordinates from creating rules and claiming authority. This is best understood through Beetham’s characterisation of authority as underpinned by rules of exclusion and access. Beetham argues that power is grounded in and maintained by ‘processes of exclusion, typically embodied in rules’ that determine who has access to power and who is excluded from it.[7] An authority ‘exclude[s] the majority, and determine[s] their relative powerlessness’ by determining the rules that govern the relationship between them (the dominant) and others (the subordinates) as such, and when, if ever, the subordinate can gain access to a position of authority.[8]

The third claim concerns what Thorburn characterises as a remedy for violations of the exclusive claim to authority, or what one might refer to as means of coercion to enforce the first two claims of authority over subordinates. Beetham argues that among different relations of dominance and subordination, what distinguishes political authority is control over ‘organised physical coercion’.[9] The authority to punish as the monopoly over violence and coercion is an intrinsic part of state authority, and it is the cornerstone that gives effect to its other claims.

There is also a fourth important claim of authority: a command or expectation of submission, obedience or at least non-resistance from the subordinates by reason of having the authority. In other words, ‘the mere utterance of an instruction by a recognized authority is supposed to be a sufficient reason for compliance’,[10] and should compliance not follow, coercion will be used accompanied by a claim that a subordinate ought also to accept the coercion and submit to it. The expectation of obedience is the root of a paradox in legal and political philosophy between authority and autonomy. Autonomy requires an individual to be free from another’s will and enabled to act according to their own free will. In contrast, the authority claims that an individual should submit his/her will to the authority’s will. The threat of coercion backs this claim and stands in need of justification. Williams offers a helpful illustration of the authority relation and the demand for justification:

A coerces B and claims that B would be wrong to fight back: [A] resents it, forbids it, rallies others to oppose it as wrong, and so on. By doing this, A claims that his actions transcend the conditions of warfare, and this gives rise to a demand for justification of what A does. When A is the state, these claims constitute its claim of authority over B.[11]

To justify the authority’s claims and coercion, there must be something offered more than just effective dominance; as Williams puts it, ‘the power of coercion offered simply as the power of coercion cannot justify its own use’.[12] In offering more than effective dominance, one of the first answers for justifying state authority is its ability to achieve benefits and general interests that are not possible without it. Beetham contends that ‘[o]ne of the most common justifications for the power of any dominant group over a subordinate one is that it enables the collective purposes or general interests of the society as a whole to be realised’.[13] Most theories of punishment follow this functionalist view. The answer to why the authority to punish is justified is answered by referencing how the institution of punishment is the most appropriate entity to perform a particular function that is not possible without it. This function can be consequential in reducing crime rates and achieving security, retributive in giving offenders their moral deserts and communicating censure and blame, or necessary in ensuring conditions of mutual cooperation and shared life between equal moral agents.

No doubt, the effectiveness of the state in performing desirable functions is part of the reasons justifying its authority and grounding possible acceptance of its claims. Nevertheless, it is an insufficient reason for justifying its authority: ‘the state’s “functionalist” capacity […] is necessary but insufficient to realize the state’s legitimacy. Individuals also possess an interest in autonomy, in being the authors of their political institutions’.[14] A sufficient justification of punishment must also offer an answer for why individuals should recognise and submit to the state’s coercion despite its contradiction with their autonomy. This is where democracy comes into play in penal theory.

One of the traditional ways of answering the paradox of authority and autonomy is democracy. By giving each citizen an equal vote, citizens choose representatives who claim the authority to determine rights and obligations in the name of the people, they vote on the rules of exclusion, and citizens are guaranteed certain rights and freedoms that enable them to contest the content and power of the law and regular opportunities to access positions of authority. Democratic guarantees ideally also offer accountability mechanisms to ensure that coercion is only used within the boundaries of the law’s authority as enacted by the people’s will. So, when the state answers why autonomous individuals should accept the authority’s claims and coercion beyond its beneficial nature, the answer is that the authority’s commands were legitimated by the participation of the individuals’ autonomous wills.

While democracy represents a minimum necessary condition for answering the paradox of punishment and autonomy, it is far from the coherent ideal assumed in the background of penal theory. On the one hand, this assumption is absent for over half of the world population who live in non-democratic systems.[15] This means that the traditional tools of penal theory in discussing retributive or consequential justifications in these contexts without scrutinising the way in which political governance interacts with the authority to punish would miss an essential dimension of punishment. When we think of organised coercion and the authority to punish in connection to the claims of rule determination and rules of exclusion, we see that punishment is not only an instrument of security, a response to the moral wrongdoing of the crime, or even a solution to problems of mutual cooperation. It is also the crucial means by which the powerful impose the rules that control individuals’ lives. Punishment enables the authority to exclude individuals, to restrict the exercise of autonomy and freedoms, and enforce submission despite individuals’ will. The means of coercion, as much as they are means of protection, can also be means of oppressing individual and collective autonomy. This is evident in authoritarian states where criminal law and punishment constitute the main tools of social and political control, backing the authority’s claims of dominance and ensuring the endurance of the autocrat in governance. Theorising about the justification to punish in non-democratic regimes must be aware of the trade-off between the traditional roles of punishment in response to crimes and its coercive role in politics.

On the other hand, in democratic states, democracy as a representation of people’s will is an ideal towards which states progress and not a fixed category. It is an ideal that has its problems and is faced with doubts over whether it can truly represent the people’s will, problems over low levels of political participation, impediments to accessing positions of authority, and political alienation, among other things. This is evident in that only 6.4% of the world population live in full democracies compared to 39.3% who live in flawed democracies with ‘significant weaknesses’ in governance, political culture, or political participation.[16] Penal theory should engage with the shortcomings of democracy and how they interact with the authority to punish rather than assume a theoretical commitment to an ideal notion of democracy to carry the burden of justifying the paradox of punishment with individual and collective autonomy.

This perspective promises to broaden the research on punishment in contexts of injustices beyond the focus on distributive inequalities and the state’s standing to blame, and towards addressing the impact of political inequalities on the authority to punish. It includes examining whether political exclusion, alienation, or absence of proper representation in the authority relation destabilises the state’s justified use of violence against those excluded, and whether the limitations and scepticism of democratic mechanisms ought to propose further restrictions on the authority to punish.

These questions cannot be adequately addressed unless we step outside the ideal world of theory and engage with the messy ways in which punishment backs the authority claims in the non-ideal world of politics. Galston wrote that ‘individuals must agree that the core challenge of politics is to overcome anarchy without embracing tyranny’.[17] One can borrow Galston’s words equally in relation to punishment and propose that maybe one of the challenging questions that penal theory must address is how the authority to punish can ‘overcome anarchy without embracing tyranny’.[18]

[1] Matt Matravers, Justice and Punishment: The Rationale of Coercion (Oxford Scholarship Online 2003) 4.

[2] Jeffrey Reiman, ‘The Moral Ambivalence of Crime in an Unjust Society’ (2007) 26 Criminal Justice Ethics 3; Victor Tadros, ‘Poverty and Criminal Responsibility’ (2009) 43 Journal of Value Inquiry 391; Stuart P Green, ‘Just Deserts in Unjust Societies’ in R A Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press 2011); R A Duff, Punishment, Communication and Community (Oxford University Press 2011) 175-202; Roberto Gargarella, ‘Penal Coercion in Contexts of Social Injustice’ (2011) 5 Criminal Law and Philosophy 21; Peter Chau, ‘Duff on the Legitimacy of Punishment of Socially Deprived Offenders’ (2012) 6 Criminal Law and Philosophy 247; Erin I Kelly, The Limits of Blame: Rethinking Punishment and Responsibility (Harvard University Press 2018) 149-178; Benjamin Ewing, ‘Recent Work on Punishment and Criminogenic Disadvantage’ (2018) 37 Law and Philosophy 29; Göran Duus-Otterström and Erin I Kelly, ‘Injustice and the right to punish’ (2019) 14 Philosophy Compass 1; Andrei Poama, ‘Social Injustice, Disadvantaged Offenders, and the State’s Authority to Punish’ (2021) 29 The Journal of Political Philosophy 73.

[3] David Beetham, The Legitimation of Power (Macmillan Education UK 2013) 43.

[4] Malcolm Thorburn, ‘Criminal punishment and the Right to Rule’ (2020) 70 University of Toronto Law Journal44, 47 (emphasis added).

[5] ibid.

[6] Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979, Oxford Scholarship Online 2012) 7; Beetham, The Legitimation of Power (n 3) 43.

[7] ibid 48.

[8] ibid 51.

[9] ibid 54.

[10] Colin Bird, An Introduction to Political Philosophy (Cambridge Introductions to Philosophy, Cambridge University Press 2006) 156.

[11] Bernard Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Geoffrey Hawthorn ed, Princeton University Press 2009) 6.

[12] ibid 5.

[13] Beetham, The Legitimation of Power (n 3) 46.

[14] Melissa Schwartzberg, ‘Introduction’ in Jack Knight and Melissa Schwartzberg (eds), Political Legitimacy (New York University Press 2019) 3.

[15] ‘“World” population refers to the total population of the 167 countries covered by the Index. Since this excludes only micro states, this is nearly equal to the entire estimated world population’, The Economist Intelligence Unit, Democracy Index 2021, (The Economist Intelligence Unit Limited 2022) 4.

[16] ibid 3, 4 and 57.

[17] William A Galston, ‘Realism in political theory’ (2010) 9 European Journal of Political Theory 385, 391.

[18] ibid.

Published by editorscjtblog

CJT Blog is jointly run by Dr Liat Levanon, Dickson Poon School of Law, King’s College, London and Dr Mark Dsouza, Faculty of Laws, University College, London.

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