Duff dagger - The Incompleteness of ‘Punishment as Fair...

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Unformatted text preview: The Incompleteness of ‘Punishment as Fair Play’: A Response to Dagger Antony Duff Published online: 7 November 2008 Ó Springer Science+Business Media B.V. 2008 Abstract Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general com- pliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different kinds of crime. Keywords Dagger Á Criminal punishment Á Fair play theory Á Mala in se and mala prohibita Richard Dagger has provided, in this and other papers, 1 what is perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, and I agree with much of what he says about it here. However, in this context ‘most persuasive’ does not entail ‘persuasive’, and I’ll take this chance to explain why I am not (yet) persuaded. On one central point Dagger is surely right: any adequate theory of criminal punishment must be set within the structure of a larger political theory about the proper character and role of the state and about the proper relationship between citizens and between citizen and state. His republican political perspective, which makes possible what we can call a communitarian liberalism, 2 is also an attractive one, and provides a fruitful framework for thinking about the role that criminal A. Duff ( & ) Department of Philosophy, University of Stirling, Stirling FK9 4LA, UK e-mail: [email protected] 1 See especially Dagger ( 1993 ); see also Dagger ( 2007 ). 2 Or a liberal communitarianism: see Dagger ( 1997 ); also Duff ( 2001 : ch. 2). 123 Res Publica (2008) 14:277–281 DOI 10.1007/s11158-008-9072-0 punishment should play in a democratic polity. He is also right to argue that a ‘fair play’ theory of punishment does not necessarily require the contractualist, individualist grounding that both advocates and critics have often supposed: we can make good normative sense of the ways in which people, including citizens, can just find themselves in cooperative practices within which they are subject to demands of fair play, without having to see such practices as grounded in some (usually hypothetical) agreement between individuals who will then take part in them. Significant aspects of law, and of criminal law in particular, can then be rationalised, as he argues in his paper, in these terms—as sustaining the political order as ‘a kind of super- or meta-cooperative practice’; and I agree, as I have always agreed, that we can see the wrongfulness of much of what is defined as criminal—the wrongfulness in virtue of which it is properly criminalized—as consisting in taking unfair advantage over those who bear the burdens of a...
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Duff dagger - The Incompleteness of ‘Punishment as Fair...

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