Day: August 10, 2010

how can we answer to one another legally?

Last week I went to the annual Simone Weil Lecture on Human Value in Melbourne. It’s becoming a bit of a tradition (I’ve been a whole two years in a row!).

This year Professor Anthony Duff tackled the topic of what model of criminal law is the ‘best fit’ for a republic.┬áHis proposal was carved out against the traditional model of criminal law, which he ascribed to Bentham. The key features of the Benthamite view are:

  • Laws are essentially commands, delivered in the imperative mood
  • These imperatives are typically backed by threatened sanctions
  • The law addresses us in the voice of a sovereign (to his subjects)

Rather than an alien imposition ‘from above’, a republican law — consisting of citizens who regard each other as equals — should address us in our own voice and speak of our shared values (ie. ‘from below’). Citizens should answer to one another not to some kind of (external) authority, whether legitimately appointed or illegitimately seized.

With this foundation suitably laid, Professor Duff explored questions such as: What kind of law is apt for citizens? What sort of trial would be expressive of such a law? And what form of punishment (if any) would be enable us to answer to one another like this?

I especially appreciated Professor Duff’s broadly phenomenological approach. He often paused to make observations about what seem like familiar features of our moral life. So at one point he discussed the sense we have that prior misconduct towards an offender — whether direct or something we’re systemically implicated in — undermines our right to call him or her to account.

This was underwritten by his not uncontroversial suggestion that a truly just republican criminal law should allow us to treat one another as citizens even when punishing those of us convicted of wrong doing (instead of excluding them from citizenship).

I felt that such a commitment to human dignity and a substantive — rather than merely formal — equality is particularly worthy of affirmation by Christians.

I kept wondering, however, about one particular truck-sized loophole in the ideal Professor Duff was constructing. Early in the lecture, he bracketed the question of what conditions or criteria must be met in order to qualify as a citizen. But surely this bears on the issue of whether — and in what situation — it is ever right to exclude someone from citizenship (e.g., by punishing offenders).