Pablo de Griff Deliberative Democracy and Punishment

Deliberative Democracy and PunishmentAuthor(s): Pablo de GreiffSource: Buffalo Criminal Law Review, Vol. 5, No. 2 (January 2002), pp. 373-403Published by: University of California PressStable URL: http://www.jstor.org/stable/10.1525/nclr.2002.5.2.373 .

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DEGREIFFMACRO 6/4/2002 2:02 PM

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 Günther, Tom McCarthy, Philip Pettit, Thomas Pogge, Bill Rehg, and Jerome Slater. Needless to say, the remaining difficulties are mine alone. 1. For instance, in Blackwell’s 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.




374 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 theory—as if punishment took place in a political vacuum—thus 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 Russia’s 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. Dep’t of Justice, Corrections Compendium, available at http://www.ojp.usdoj.gov/bjs (last visited Mar. 20, 2002).




2002] 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 democracy—broadly speaking a Habermasian one—and 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).





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





In a nutshell, the contrast between aggregative liberalism and deliberative democracy lies in the latter’s 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); Jürgen 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.





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 individual’s 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 Kant’s monological application of the principle of validity. Habermas adopts McCarthy’s formulation of the point:





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 Jürgen 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 one’s 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





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 Rawls’s description of individuals as “self-originating sources of valid claims,”16 but famously articulated in Kant’s 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 Estlund’s 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).





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.





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 possible—and indeed, in order to make possible—inclusive, 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 Jürgen Habermas 64-65 (1994); David Hoy & Thomas McCarthy, Critical Theory 38-42 (1994).





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 Nino’s 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 Habermas’s 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.





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





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 non-reductionist 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 non-reductionistic 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. Habermas’s 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 Habermas’s 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.





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 institutions—assuming 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 procedural—or better, institutional—theory 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: Habermas’s Faktizität und Geltung, in The Cambridge Companion to Habermas 201, 214-15 (Stephen K. White ed., 1995).





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





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 especially—but 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).





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 democracy—a 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, Durkheim’s 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).





A. Persuasion and Participation

Duff’s 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 Nino’s and Habermas’s. 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, Duff’s 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.





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, expressionism’s 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 can’t 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. 36. Duff, supra note 4, at 48. 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 morality—such as Habermas’s—which 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





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 offender’s participation is required merely for the sake of reaching a judgment which is passed on him or her, in a trial the offender’s 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 defendant’s 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 defendant’s participation. The significance of the defendant’s 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 Günther, as well as comments from Ciaran Cronin, helped me clarify this issue. 38. Duff, supra note 4, at 34. 39. The emphasis that the expressionist account of trials places on the defendant’s 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 Günther for raising this issue.





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 defendant’s 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 reason-giving.

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 public—including the victims of crime—to be persuaded of the judgment that the trial makes of the criminal’s 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

40. Duff, supra note 4, at 35.





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 defendant’s 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, deterrence—at least by itself—does 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.





“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 individuals—either 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.





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 offender’s 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





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





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 society’s 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).





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 punishment—for without this link expressionism provides a wonderful account of blaming and reproving, but not of punishing—forging 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. Feinberg’s 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.





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 non-reductionistic 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





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 Murphy’s 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).





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 don’t 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.





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).



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Pablo de Griff Deliberative Democracy and Punishment

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