Vol. 11 No. 8 (August 2001) pp. 380-383.

PUNISHMENT, COMMUNICATION, AND COMMUNITY by R. A. Duff. New York: Oxford University Press, 2000. 245 pp. Cloth $45.00. ISBN 0-19-510429-3.

Reviewed by David H. Fisher, Department of Philosophy, North Central College.

R. A. Duff's PUNISHMENT, COMMUNICATION, AND COMMUNITY is a closely reasoned case for a distinctive normative justification of punishment based on mediation and probation. Although it is in some ways similar to Joel Feinberg's (1970: 95-118; 1990: 144-165) "expressive" notion of punishment and Jean Hampton's (1995: 356-375) understanding of "moral education, R. A. Duff's understanding of punishment as a communication of deserved censure to criminals from a liberal political community is distinctive. First, Duff insists throughout that punishment must be inclusionary rather than exclusionary. It must, in other words, maintain connection between the criminal and the moral/political community of which she remains a member. Second, it must address the criminal in ways that respect her autonomy, seeking neither to coerce nor manipulate change but rather to persuade her towards "secular penance"-genuine remorse or repentance for the past deed. This must be followed by self-reform that includes an understanding of the nature of the wrong done together with a will to change, and, finally, reconciliation. The offender owes all of these to others as fellow citizens. Many readers will find Duff's discussion of types of offenders (pp. 115-25)-the morally persuaded offender," "the shamed offender," "the already repentant offender," and "the defiant offender" worth considering, and his argument for communicative sentencing as "structured by a negative rather than positive principle of proportionality" (pp. 139-43) a helpful contribution to contemporary discussions of limits on retribution.

Duff begins with a review of three familiar positions on punishment--consequentialism in several forms, retributionism, and abolitionism. A chapter follows this discussion on "Liberal Legal Community" in which Duff contrasts communitarian and liberal notions of community and criminality. The central claims of Duff's communicative theory are then outlined in chapters on "Punishment, Communication and Community" and "Communicative Sentencing," followed by a brief concluding chapter on issues between Duff's ideal theory and contemporary punishment practice. His understanding of the nature and basis of political obligation in this chapter combines elements of deontological, natural law, and classical social contract theory to support his claim that those "who suffer systematic, persistent exclusion . cannot justly be held answerable" or punished for their crimes. (p. 196).

The strength of Duff's position is his combination of idealism and great care in argument. The former, noted by Mark Tunick (1992: 160-61) in his discussion of Duff's earlier TRIALS AND PUNISHMENTS ("Forced to choose between the ideal and the real, Duff chooses the ideal"), is evident is his consistent challenges to any means or goal of punishment that treats the criminal as less than an autonomous moral agent or as an "enemy" to be destroyed. As instances of the latter, readers will find his criticism of flaws in the forfeiture or rights or moral standing arguments by C. W. Morris (1991) in Chapter 1, his case for a normative purpose of criminal law within a liberal polity in Chapter 2, or his distinction between expression and communication in a liberal political community in Chapter 3 all well argued and carefully documented. In many ways, Duff's book is Rawlsian in its justification of punishment. Although Duff does not use the "original position" device, his discussion of what is owed to victims as fellow citizens and to the polity by criminals together with his claims about what is owed-negatively and positively-to criminals-is similar to Rawls' experiment. At the very least, Duff's book is a thought experiment that challenges standard deterrentist and retributionist rhetoric. The concluding bibliography is an excellent resource for the teaching of classical and contemporary punishment theory.

At the same time, some American readers will find Duff's three-page dismissal of the death penalty, although consistent with his communicative, non-exclusionary theory of punishment, cursory. Duff notes that although he "could respect the action of someone who sees suicide as the only possible response to his terrible crime. I do not say that I would think (let alone say to him) that he ought to do it [and] ... whatever we might think collectively about a wrongdoer's response to his crime, it is not for us to judge that he ought to suffer death." Even in the case of the most obdurate, unrepentant offender, Duff claims that "for any punishment other than death, we can still hope that she will come to change her views later ... this might not be a realistic hope, but it is a crucial aspect of the attitude we should have towards the offender as someone who is not beyond redemption." (pp. 154-55). They may also wonder why a closely argued theory of punishment with the goal of "secular repentance" neither cites nor deals with Michel Foucault's claims in DISCIPLINE AND PUNISH or with the considerable secondary literature which that text has generated in America and in France.

The reason for the Foucauldian omission may simply be Duff's predominantly analytic sources, his academic location at Oxford, and the isolation between the analytic and contemporary Continental philosophical communities, but it is nevertheless unfortunate. Much of what Duff has to say at the end of the book about the non-answerability of those who have been systematically excluded from community would be enhanced by consideration of Foucault's genealogy. Further, the omission of Foucault's discussion of confessional practices and the origins of modern criminal justice is strange for an author who wishes to defend "secular penance" by the offender as an appropriate goal for punishment. Even if liberals are inclined to dismiss Foucault's reliance on Nietzsche as the "ethics of an immoralist" (See Berkowitz 1995 and compare Strong 2000: 100-4), defenders of tolerant pluralism need to meet the objections to their position.

The reason for Duff's brief dismissal of capital punishment may, similarly, reflect his European cultural location as well as his theory of punishment. Punishment, for Duff, is justified within the context of a liberal political community, and he rejects the notion that a human being could, by his or her behavior, so distance himself from humanity as to deserve death--the ultimate exclusion. Two counter examples challenge this premise.

The first is the case of described by Dostoevsky in THE BROTHERS KARAMZOV of a sadistic general who orders a serf boy stripped naked and torn apart by dogs in front of his mother and others in retaliation for laming one of the general's dogs (Hampton 1988: 111, uses a full citation of this story).

The second is Semezdin Mehmedinoovic's description of his encounter with Radovan Karadzic in Sarajevo prior to the latter's use of "mind bending" as a psychiatric war strategy in Bosnia, consisting of "relentless humiliation of innocent people. ... Karadzic's soldiers put mothers in the same position in which Meryl Streep found herself in the cinematic reconstruction of events that took place in a German concentration camp. Karadzic must ... somewhere in his mind ... already have conjured up some of the HELLISH intentions that would be realized during the war" (Mehmedinoovic 1998: 14-25). In both cases, the question addressed by Ivan to Aloysha Karamazov at the end of Dostoevsky's story is appropriate: "Well, what was to be done with him?" The General's case involves a single, sadistic action while Karadzic's case involves a systematic, planned attack on a civilian population. However, in both cases, it is arguable that the persons in question have so far distanced themselves from any conceivable moral or political order that that have ceased to be human in any recognizable sense. This is not a possibility considered in Duff's idealistic imagination.

Assume, for the sake of argument, that contemporary Russian law justified the general's treatment of the boy as a disposable chattel or that Karadzic's actions had the backing of a majority of the Bosnian parliament at the time he ordered them. What ought to be done with such persons by citizens of a liberal polity if, as in the case of the International Tribunal for Yugoslavia, such persons come under their jurisdiction? One answer-the answer of the International Tribunal's statute-is that the most that may be done to such persons is lifetime imprisonment ("The penalty imposed by the Trial Chambers shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of former Yugoslavia") (United Nations 1993: Art. 24.1). Aloysha's answer to Ivan is different: "Shoot him!" Duff would doubtless claim that one must hold out the possibility for secular redemption, even for such persons. Others, including this reviewer, are not convinced. Liberals like Duff can understand harm and wrongdoing-but not evil.

REFERENCES:

Berkowitz, Peter. 1995. NIETZSCHE: THE ETHICS OF AN IMMORALIST. Cambridge, MA: Harvard University Press.

Feinberg, Joel. 1970. "The Expressive Function of Punishment," in DOING AND DESERVING, ed. Joel Feinberg. Princeton: Princeton University Press.

Feinberg, Joel. 1990. HARMLESS WRONGDOING: THE MORAL LIMITS OF THE CRIMINAL LAW, Vol. 4. New York: Oxford University Press.

Hampton, Jean 1988. "The Retributive Ideal," in FORGIVENESS AND MERCY, ed. Jeffrie G. Murphy and Jean Hampton. Cambridge: Cambridge University Press.

Hampton, Jean. 1995. "The Moral Education Theory of Punishment," in. CRIME AND PUNISHMENT: PHILOSOPHIC EXPLORATIONS, ed. Michael J. Gorr and Sterling Harwood. Boston: Jones and Bartlett.

Mehmedinoovic, Semezdin. 1998. "Stocking Hat," in SARAJEVO BLUES, trans. Ammiel Alcaly. San Francisco: City Lights Books.

Morris, C. W. 1991. "Punishment and Loss of Moral Standing." CANADIAN JOURNAL OF PHILOSOPHY 21: 53-79.

Tunick, Mark. 1992. HEGEL'S POLITICAL PHILOSOPHY: INTERPRETING THE PRACTICE OF LEGAL PUNISHMENT. Princeton: Princeton University Press.

Strong, Tracy B. FRIEDRICH NIETZSCHE AND THE POLITICS OF TRANSFIGURATION. Urbana: University of Illinois Press, 1975, 1988,2000.

United Nations. 1993. STATUTE OF THE INTERNATIONAL TRIBUNAL. Location: www.un.org/icty/basic/statut/statue.htm

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