BOOK REVIEW

Punishment, Deliberative Democracy & The Jury

Albert W. Dzur, Punishment, Participatory Democracy & The Jury,Oxford University Press, 2012

Roberto Gargarella

� Springer Science+Business Media Dordrecht 2013

Introduction: The context

Albert Dzur has written an engaging and controversial book, where he defends the jury as a

form of ‘‘democratic justice.’’ His proposal is particularly valuable in the context of

contemporary criminal justice, which seems particularly hostile to all kinds of initiatives

for democratic justice. With the help of Dzur’s book, I want to briefly describe this

contextual situation, so as to be in a better position for assessing his reformist suggestions.

In the first place, the system of criminal justice is organized around tribunals that

‘‘produce distance’’ with the public; ‘‘impede victims, offenders, and members of the

public from recognizing the human suffering in both criminal offenses and in state pun-

ishment;’’ and foster ‘‘segregation, separation, and ultimately, dehumanization’’ (Dzur

2012, 17–20).1

A second element to consider is the way in which the dominant system of criminal

justice has reduced the institution of the jury to a minimum expression. As Dzur recognizes

from the very beginning of his book, in countries like Britain the jury has been confined to

only the most serious criminal trials, while in America it ‘‘has been on the decline for

decades as state and federal jury trials have shrunk in absolute members and as a per-

centage of total cases (5–6)’’ ‘‘Supplanted by plea agreements, settlements, summary

judgements, and nontrial forums’’-Dzur adds- ‘‘juries in the United States hear a very small

fraction—around 5 % or lower- of all cases’’ (ibid.). As a consequence, he admits, com-

mentators ‘‘now talk about the ‘eclipse’, ‘disappearance’, and inevitably, the ‘extinction’ of

the jury’’ (6).

R. Gargarella (&)Universidad de Buenos Aires/CONICET, Buenos Aires, Argentinae-mail: roberto.gargarella@gmail.com

1 These problems will explain his justifiable enthusiasm with the jury, restorative justice and other legalmechanisms that could contribute to ‘‘close social distances between offenders and victims, and between thepeople who commit offenses and the people who live near them and will live near them when the are donemaking amends’’ (39). These responses, Dzur assumes, can promote people’s civic capacities, stressing our‘‘interconnectedness’’ and ‘‘relationships that link us together’’ (ibid.).

123

Crim Law and PhilosDOI 10.1007/s11572-013-9269-y

In addition, and perhaps more significantly, the two main options that have been gaining

force in the place of a more democratic justice, clearly dishonours the values that demo-

cratic justice wants to protect.

The first alternative in question is penal populism, which once and again seems to recover

attraction within contemporary criminal law. One crucial, relatively recent example of penal

populism is the ‘‘three strikes and you’re out’’ policy that California transformed in law in

1994 (an example that seems particularly upsetting for Dzur, who dedicates numerous pages

of his book to it). Penal populist measures are normally based on ‘‘a suspicion of official

leniency regarding criminal defendants and convicted offenders,’’ and rooted in a ‘‘more

generalized distrust of officials in all branches of government along with the policy experts

and professionals who advice them’’ (23). This general distrust in policy experts has usually

come together with pressures trying to ‘‘assert public influence through bypassing the formal

government procedures seen as elitist and ineffective by many citizens’’ (23–24).

The second alternative in question is represented by ‘‘the technocratic response to penal

populism’’ (27). The implications of this response are serious because proponents of ‘‘expert

justice’’ challenge the very foundations of Dzur’s project. They defy one of Dzur’s main claims,

namely that lay citizens are well prepared to actively engage in politics and reflect upon funda-

mental legal issues. Not surprisingly, then, technocrats want to directly remove certain criminal

justice issues from the reach of the public. At the same time (and this results troublesome for

Dzur’s project), defenders of ‘‘expert justice’’ want to achieve goals that are substantially similar

to the ones that guide Punishment, Participatory Democracy, & the Jury. Like Dzur, they dislike

penal inflation; they are against harsh punishment; and they want to treat offenders with mildness

and respect. The problem is that they believe that the only way of achieving these goals is by

‘‘depoliticizing democracy and reprofessionalizing criminal justice’’ (27).

In his work, Dzur clearly distinguishes his proposal for a democratic justice from both

penal populism and expert justice (we shall come back to this issue below). At the same time,

the author tries to demonstrate the worth of the democratic alternative. In particular, he makes

a significant effort for justifying lay participation in criminal justice, an idea that is heavily

resisted or directly rejected within both legal and academic circles. Dzur’s main argument in

this respect is that civic participation ‘‘brings otherwise attenuated people into contact with

suffering human beings, draws attention to the ways laws and policies and institutional

structures prolong that suffering, and makes possible—although does not guarantee—greater

awareness among participants of their humanity’’ (Dzur 2012, 14). Moreover, he claims this

kind of participation in public affairs helps individuals to become aware of the ‘‘system of

cruelty’’ in which the administration of punishment has become (16).

Deliberative Democracy as the Background Theory

Although I share Dzur’s lack of sympathy towards both penal populism and expert justice

and at the same time feel strongly attracted to his proposal for a more democratic justice, I

believe that his project still looks incomplete. More specifically, I think that his project

could be greatly strengthened with the help of a theory of democracy. This theory could

help Dzur both in his criticisms against the existing alternatives (expert justice/penal

populism) and in his (re)construction of a democratic substitute.

What I have in mind is a specific theory of democracy, namely a theory of deliberative

democracy. However, I should immediately add that I am convinced that some other

refined conceptions of democracy could also be useful for this purpose. In any case, the

good news is that many of Dzur’ references to democracy suggest that he is thinking along

Crim Law and Philos

123

lines that are very similar to those that correspond to a more robust theory of democracy,

such as a deliberative theory.

Now, in order to adopt a deliberative conception of democracy as his background theory,

Dzur would need to introduce some changes and refinements in his work. It is not only that the

deliberative view should come to play a larger place in his work, but also that his remarks on

democracy—and particularly on the implications of democracy—should somehow be revised.

The particular version of deliberative democracy that I propose mainly assumes i) that all

those potentially affected by legal norms should participate in their construction; and ii) that

they should do so by engaging in a broad process of collective discussion. This particular

approach to deliberative democracy, I believe, is not pacifically accepted by all defenders of

this conception, but is still clearly linked to the view that many of its most prominent

defenders propose (see Elster 1986; Habermas 1996; Nino 1996a, b; Pettit 1997a, b).

Notably, the two main elements of this particular conception of democracy—inclusion

and deliberation—are very similar, although not identical, to the ones mentioned in Dzur’s

book as the prerequisites of a legitimate law.2 Dzur, in effect, highlights the requirements

of inclusion and participation as the basic conditions of a legitimate law. However, it must

be noted, this second requirement—participation—cannot be taken as a synonym of

deliberation. Deliberation presupposes participation, but participation organized in a

particular way.3 For deliberative democrats, if the basic guarantees of a fair deliberation

are not in place (guarantees that favor a reasonable process of exchange of arguments), an

inclusive and participatory system could result in biased, prejudiced, self-interested –

finally less impartial- decisions.4

The theory of deliberative democracy, which seems to fit well with Dzur’s democratic

approach, has been quite productive within the area of criminal justice. We may recognize

traces of that view, for instance, in so-called expressive theories to criminal justice, which

justify punishment in relation to its particular communicative capacities (Feinberg 1965;

Hampton 1984).5 Contemporarily, the influence of this deliberative theory became clearer

2 In one telling paragraph, Dzur refers to ‘‘the background legitimacy of the law as something the defendantrecognizes as his. Inclusion and participation thus must go all the way down, for in the absence of a politicalcommunity that treats citizens as co-owners, there can be no rightful expectation that one who violates thelaw should feel ashamed and seek to make amends. How can he own up to violating a law that has nottreated him as a co-owner?’’ (Dzur 2012, 91, emphasis added). The paragraph is particularly interestingbecause it touches many of the critical interests of a deliberative view of democracy. It recognizes that thelegitimacy of the law is substantially linked to the way in which the law is created; it properly identifies thatinclusion and participation are fundamental prerequisites of a valid legislation; it adequately signals that alegal system that does not treat every citizen as an equal (as ‘‘a co-owner’’) is a flawed legal system.3 I must acknowledge, however, that particularly at the end of his book, Dzur properly distinguishesbetween ‘‘three kinds of participation’’, namely plebiscitary, advocacy, and load bearing (163). He states:‘‘criticism of democratic justice is best understood as criticism of the plebiscitary and advocacy participationwitnessed in the last generation’’. In addition, he highlights the importance of placing ‘‘lay participants’’ intoa dialogical context with others (164). However, I also think that these moves represent only a first necessarystep in the direction of a—still missing—more robust and complete approach that connects a certain theoryof democracy (and I would also add a certain theory of justice) with criminal justice.4 Of course, a properly established deliberative system would not ensure impartiality—no legal systemcould guarantee that. However, I submit, it would maximize the chances of deciding impartiality, which forpresent purposes should be enough.5 According to Feinberg, ‘‘punishment is a conventional device for the expression of attitudes of resentmentand indignation, and of judgments of disapproval and reprobation, on the part either of the punishingauthority himself or of those ‘in whose name’ the punishment is inflicted’’ (Feinberg 1965, 96). Thecommunicative approach, instead, sees the Criminal process as a ‘‘two-way’’- process, where one part triesto actively address the other, resorting to his reason, rather than his fear (see, for example, Duff 2001; Dzur2012, 90).

Crim Law and Philos

123

and also more significant. We find interesting examples of its impact in Philip Pettit & John

Braithwaite’ works (i.e., Braithwaite and Pettit 1990, 2000), and also, and more clearly, in

communicative theories of punishment such as the one proposed by Antony Duff.6 Duff’s

communicative approach, I believe, properly demonstrates how a theory of punishment

might take our democratic assumptions and commitments seriously.7 However, I should

also add, his theory has not yet gone ‘‘all the way down’’ (and ‘‘up’’) examining the

implications of embracing such a theory of democracy.

Undeniably, both Duff and Dzur pay attention to some relevant consequences derived

from democratic theory regarding the criminal process and sentencing policies. In one way

or another, they both recognize that a serious commitment to democracy has strong

implications for criminal justice. Particularly so, given what a theory of democracy requires

in terms of civic participation, a reason-giving decision-making process and rational per-

suasion. However, it is equally or more important to pay attention to the implications of

democratic theory concerning the procedural rules for the creation of legal norms.

One interesting way to begin the study of these implications consists on focusing on

how a deliberative theory would respond to the challenges posed by both penal populism

and expert justice. As we shall see, by adopting a deliberative theory of democracy as a

background theory, we could not only strengthen our criticisms to both alternatives, but

also improve our chances of defining a proper substitute to them.

The Problem of Expert Justice8

Let us begin our exploration of penal elitism, from where we have left it, this is to say, from

Dzur’s objections to it. Given the importance of the technocratic challenge, Dzur dedicates a

significant part of his book to responding to it. The author states: ‘‘the way to a less punitive

criminal justice system is not through depoliticizing justice, but the opposite, repoliticizing

justice as a public practice’’ (60). Accordingly, he examines a wide variety of arguments

(historic, moral, epistemic) capable of limiting the relevance of the proposal for an expert justice.

Dzur’s specific criticisms to the technocratic alternative are based on the following three

arguments: (1) ‘‘the potential hazardous consequences of expert justice’’; (2) the threat it

poses to ‘‘civic dignity’’; and (3) the difficulties that bureaucratic insulation and official

autonomy create in societies characterized by (what John Rawls, for example, called) the fact

6 Communicative approaches propose to enter into a moral dialogue with the offender, in order to com-municate to him the social condemnation for what he has done. What they emphasize is the importance ofexpressing a social condemnation in the face of certain crimes, rather than deterring or incapacitatingoffenders. In Duff’s words, the Criminal Justice system should not seek the people’s ‘‘obedience to itsdemands, but their understanding and acceptance of what is required of them as citizens’’ (Duff 2001, 80).What we need is to strengthen his or her links to the rest of us, and convince him or her that there areimportant reasons for him or her to obey the law (which presupposes that he or she has reasons to recognizehis or herself as an author of the law).7 Given the rather ‘‘natural’’ or obvious connections that exist between a deliberative view of democracyand a communicative understanding of punishment, it is surprising that authors such as Carlos Nino, an earlyproponent of deliberative democracy, did not make or pursue that connection. Nino began and concluded hisacademic career writing about criminal justice (Nino 1980, 1983, 1996b) and in between both extremes,dedicated almost two decades to develop a powerful approach to deliberative democracy (Nino 1996a, b).Pablo de Greiff rightly point out this missing connection, making reference to the fact that, in his latestwritings, Nino still founded his views on Criminal Justice from moral premises alone, leaving no clear roleto his views on democratic legitimacy (de Greiff 2002, 383).8 See, in particular, chapters 2 and 8 of Dzur’s book.

Crim Law and Philos

123

of pluralism (157). These three criticisms, I believe, are fully consistent with the deliberative

approach. But the deliberative approach, at the same time, might enrich Dzur’ understanding

of the dimension and meaning of the problems he mentions. In effect, a deliberative

democracy is capable of providing a good explanation about why expert justice lessens rather

than increases our chances of deciding impartially; why our civic dignity is offended by an

elitist system of justice; and why the fact of pluralism requires criminal justice to be more

open to, rather than more distanced from, the people at large. Deliberative democracy helps

us, in sum, to better explain and challenge the biases that characterize our penal system.

Advocates of expert justice would dismiss all these claims. For them, the attraction of

expert justice resides precisely in its capacity to favour rationality and reasonableness within

a penal system that is always under the pressure of activists claiming for more and harsher

punishment. I think, however, that defenders of expert justice are in trouble: they do not take

the problems that deliberative democracy poses to their view seriously. One significant

example could illustrate the kinds of improper biases that deliberative democrats denounce

(biases that defenders of expert justice tend or need to neglect). I am thinking about the

example of most prisons, which everywhere exhibit a remarkably homogeneous composition,

in the context of profoundly heterogeneous societies, this is to say in the context of societies

characterized by the fact of pluralism. For deliberative democrats, that terrible result is not

surprising at all. In our societies—no matter whether penal policies are guided by penal

populism or expert justice—it has always been the case that certain offenses and groups

receive brutal punishments while other offenses and groups are kept almost untouched. For

deliberative democrats there are obvious connections between those extended, common,

always unacceptable outcomes, and the elitism that has always characterized our criminal

justice system. Criminal Law norms have always been in the hands of people who are

completely detached from (people who basically know nothing about) those who are usually

the most affected by these norms. The question, then, is whether we could reasonably have

expected something different from this elitist process. The answer is no: the biases that

characterize the entire system of criminal justice (biases that appear in the design of the penal

norms, their interpretation and their application) are no surprise, given the obvious fact that

we all have epistemic difficulties for properly recognizing and balancing the interests of those

we do not know –an obvious fact that our decision-making processes do not take seriously

enough. This is precisely what deliberative democrats want to emphasize.

Taking into account these considerations, it is astounding to see advocates of expert justice

proposing ‘‘remedies’’ that can only radicalize the kinds of evils that we face. Take, for example,

what Philip Pettit has called the ‘‘outrage dynamic’’ that operates in ‘‘sentencing policy’’, and his

response to it (Pettit 2002, 429. See also Zimring et al. 2001).9 The dynamic would take the

following form: first, the State exposes to society a certain evil; second, the exposure of this evil

leads, then, to popular outrage; and third, the popular outrage forces government to adopt new

(and normally repressive) measures (Pettit, 430). According to Pettit, this ‘‘outrage dynamic’’

has becoming increasing influential within the criminal law, and actually explains many of its

recent developments. The dynamic would be fuelled by the sensational media, which ‘‘[t]aping

into people’s voyeuristic and condemnatory appetites’’ manages to attract the attention of the

people, and release their feelings of outrage and indignation.10 Facing this outrage, he concludes,

9 Dzur examines this approach in pages 27-30.10 ‘‘Let criminal evil be exposed in the media, especially with the vivid impressions that can be created incontemporary television, and there will be no shortage of popular outrage’’ (Pettit 2002, 434). The case ofPettit is particularly surprising, given his—in general—refined and enormously attractive approach to boththe issues of democracy and criminal justice.

Crim Law and Philos

123

the routine response of the government is ‘‘to announce a determination to establish tougher

sentences or, in the event that sentences are already at a maximum, to call for stricter policing or

greater efforts to apprehend the offender’’ (ibid. 435).11

Deeply concerned by the implications of this ‘‘outrage dynamic’’ Pettit suggests

adopting an alternative institutional arrangement as a remedy –one that fits well with the

principles and assumptions of expert justice. This remedy is one whereby general sen-

tencing policy is ‘‘taken out of the direct hands of parliament and given in the first instance

to a body that operates at arm’s length from parliament and government’’ (like a central

bank). In this way, the area of sentencing policy would be totally removed ‘‘from the

immediate pressures of popular outrage’’ (ibid, 442).

From a deliberative perspective, the problems affecting these kinds of approaches are

apparent. First of all, those proposals deny, rather than honour, the principles of deliber-

ative democracy, by suggesting that criminal law show be taken away from the hands of

the people. A deliberative democrat may agree with the proposal of carefully crafting the

criminal law, but never with the idea of leaving that process in the hand of experts: by

doing so, the chances of making the law more impartial decrease, rather than augment.12 In

addition, deliberative democrats would follow Pettit in his criticisms of the ‘‘outrage

dynamic,’’ but not in his responses to that problem (Martı́ 2009). For a deliberative

democrat, the solution requires strengthening the ‘‘deliberative’’ aspect of democracy,

rather than weakening its ‘‘inclusive’’ aspiration.13 In fact, if we recognized, with Pettit,

that the main origins of the obnoxious ‘‘outrage dynamic’’ resided in the sensationalist

media, or the people’s lack of information, or the absence of adequate forums of debate,

then the reaction should be the obvious one (which does not seem to be the obvious to

Pettit), namely, to promote public discussions, create new forums for political debate,

generate new sources for the transmission of impartial information, reduce the influence of

money in the media and in politics, etc. In this respect, I believe, Pettit and some others

have properly acknowledged (some of) the sources of the problem, but have offered us a

solution that seems to ignore those same findings and, what is worse, contradicts some of

the main aspirations of the deliberative view.14

11 In the conclusion of their book on punishment and democracy (aimed at analyzing the ‘‘three strikes’’legislation in California), Zimring et al. reach basically the same conclusion. For them, a ‘‘reason to insulatepunishment from democratic political processes is to avoid placing a vulnerable area of governance in anarena where it can be used as an opening wedge for broader attempts to undermine the credibility ofgovernment’’ (Zimring et al. 2001, 232).12 For the same reasons, a deliberative democrat would not simply accept the creation of new counter-majoritarian devices.13 Unfortunately, even Dzur ends up opening more room than necessary to the technocratic view. Thus, atthe end of his book, Dzur admits ‘‘the possibility that citizen participation in adjudication can lead coun-terproductively to greater punitiveness in the form of more criminalization, harsher penalties, penalshaming, and degradation’’ (163). Also, in his conclusion he claims: ‘‘I have shown that it is not a domi-nance of experts but an equilibrium balancing formal procedure and technical expertise with informalelements and lay knowledge that helps realize the goal of seeing, talking with, and treating the offender as aparticular individual and as a person worthy of respect’’ (161). From a deliberative perspective, none ofthese claims seem in principle reasonable.14 This is basically the same conclusion reached by Dzur and Mirchandani 2007; and Johnstone 2000. Forthem too, ‘‘far from illustrating the need for buffers between the public and criminal justice policy making,the penal populism evidenced in three strikes laws shows the need for an even deeper, albeit better informedand more closely engaged, kind of public involvement’’ (Dzur and Mirchandani 2007, 163).

Crim Law and Philos

123

The Problem of Penal Populism15

Let us now focus on penal populism, and how to distinguish the democratic alternative

from it.16 Following the work of Anthony Bottoms, Dzur relates penal populism with

politicians ‘‘using for their own purposes, what they believe to be the public’s generally

punitive stance’’ (22). This characterization of penal populism allows us to recognize

one of the main failures of that view: penal populism claims a democratic pedigree that

it does not have. Penal populism is unable to give a proper space to the actual, diverse

and plural voices of the people –voices that the democratic proposal wants to incor-

porate into the criminal justice system. This is why Dzur adequately presents penal

populism as ‘‘a case of democratic deficit not surplus, a popular movement without the

kind of social capital that would lead to constructive engagement in criminal justice

policymaking’’ (33).

Now, it is important to clarify exactly why penal populism is ‘‘a case of democratic

deficit’’, so as to be then better prepared to repair that democratic deficit. My guess is that,

for Dzur, the main problem with penal populism basically concerns the way in which this

view (in spite of its democratic rhetoric) actually disavows civic participation. But this is,

in fact, only one of the many problems affecting penal populism. A deliberative theory, I

believe, would help us to recognize these deficits better, beginning from the way in which

penal populism both fails to comply with the requirements of inclusion and deliberation.

Penal populism is not only an elitist view, but also one that does not recognize the value

of collective discussion and the exchange of reasons. Penal populists seem ready (even

eager) to confuse democracy with the occasional expressions of some people in a modest

survey.

Thus, in societies guided by penal populism, criminal law norms are created and

interpreted in the absence of (or disregarding the importance of having) a fair col-

lective discussion: those norms are usually crafted in a process that is basically

dependent on money, and in the context of profound social and economic inequalities

–inequalities that penal populism take as given. So, even if opinion polls were true in

indicating a convergence between ‘‘tough’’ criminal policies and majority opinions,

there would still be a long way to go before saying that we are in front of a

‘‘democratic’’ response (what reason would we have for considering ‘‘democratic’’ the

work of a few acting in the name of what some people occasionally said in an

opinion pool?). One could reach such a rash or temerarious conclusion only after

subscribing an impoverished notion of the term ‘‘democracy’’. By contrast, if one

adopts the viewpoint of a deliberative democracy (or similar ones, I would add), one

cannot but deny the ‘‘democratic’’ character of those decisions or interpretations. A

truly democratic choice, the deliberative perspective would claim, would be the one

that emerged after an inclusive process of collective discussion. Collective delibera-

tion has very little to do with an elite acting in the name of the whole, and even less

with the aggregation of (what are, in the best case) individual and isolated responses

to occasional surveys—surveys that could be undoubtedly useful for other purposes

and in other spheres, like in a commercial market. Democracy is and should be

understood as something substantially different from the market: issues of justice

15 See, in general, chapter 2 of Dzur’s book.16 For a discussion and examples of the concept of penal populism, see Roberts et al. (2002), Garland(2002). Contrasts between elitists and populists may be found, for example, in Ryan 1999.

Crim Law and Philos

123

demand collective and substantive democratic agreements, rather than episodic or

spasmodic expressions of the market (Elster 1986).

Coda: Deliberative Democracy and the Place of the Socially Excluded

The particular emphasis placed by deliberative democrats in the idea of inclusion helps us

to sharpen the existing contrast between communicative approaches and penal populism. In

addition, it allows us to raise an important concern, which also plays a central role in

Albert Dzur’s work too.17 I am thinking about the problem of social exclusion, and the

importance this problem should have in our assessment of the criminal law.

Once again, a deliberative perspective would contribute in strengthening Dzur’s

approach: it would allow him to define more precisely what is wrong with social

exclusion, and also help him imagine what to do to confront it. For the deliberative

view, the systematic absence of certain viewpoints from the discussion of the con-

tent, boundaries and precise meaning of the criminal law, seriously undermines the

impartiality—and therefore, the validity—of the law in force. Those kinds of

restrictions tend to result in decisions that are more biased, less considerate of the

interests of everyone, and less impartial (Nino 1996a, b).18 By contrast, one could

add, a more informed, transparent and inclusive deliberative process would lessen

(although never eliminate) the chances of producing decisions impaired by personal

biases and logical or informational errors. This explains why the democratic deci-

sion-making process demands an ongoing, unending, inclusive collective

conversation.

Together with other theorists of the criminal law, Dzur appropriately highlights the

gravity of this problem, we can call it the problem of systematic marginalization,19 as one

that affects the preconditions of criminal liability (Duff 1998, 2001).20 The deliberative

perspective would agree with this approach but still press for taking the consequences of

this issue further, thus exploring with more details its implications regarding the creation,

application and interpretation of the criminal law. However, the study and evaluation of

these implications—of utmost importance for all those interested in having a just system of

criminal justice—must be reserved for a future opportunity.

17 Dzur, for example, talks about the ‘‘exclusionary tendencies that undermine the general legitimacy ofcriminal courts’’, which he sees as a ‘‘constant feature’’ of modern societies (Dzur 2012, 92).18 This consequence is related to a crucial—Millean—assumption of the deliberative view, which is thateach person is the best judge of his or her own interests. This is what makes the participation of every personin the deliberative process, necessary. As a result of this, one can conclude that the systematic absence ofpart of the population from that process of creating and interpreting the law make it less likely to properlybalance the needs, interests and demands of all different individuals and groups. I refer to these as situationsof legal alienation (Gargarella 2012).19 Duff has maintained, in this respect, that ‘‘Sufficiently persistent, systematic, and unrecognized oruncorrected failures to treat individuals or groups as members of the polity who share in its goods underminethe claim that they are bound by its laws. (Duff 2001, 195–196). Based on partially similar reasons, JeffrieMurphy maintained that ‘‘modern societies largely lack the moral right to punish’’ (Murphy 1973, 221) andalso that ‘‘in the absence of a major social change’’ institutions of punishment are ‘‘to be resisted by all whotake human rights to be morally serious’’ (ibid., 222).20 In Duff words, ‘‘[a]ny account of punishment which makes the justice of an offender’s punishmentcrucial to its justification must face the problem of whether we can justly punish offenders whose offencesare closely connected to serious social injustice which they have suffered’’ (Duff 1998, 197).

Crim Law and Philos

123

References

Braithwaite, J. & Pettit, P. (2000), ‘‘Republicanism and Restorative Justice: An Explanatory and NormativeConnection,’’ in H. Strang & J. Braithwaite, Restorative Justice, Burlington: Ashgate.

Braithwaite, J. & Pettit, P. (1990), Not Just Deserts: A Republican Theory of Criminal Law, Oxford:Clarendon Press.

de Greiff, P. (2002), ‘‘Deliberative Democracy and Punishment,’’ Buffalo Criminal Law Review, vol. 5, n. 2,373–403.

Duff, A. (1998), ‘‘Law, Language and Community: Some Preconditions of Criminal Liability,’’ 18 OxfordJournal of Legal Studies 189-206.

Duff, A. (2001), Punishment, Communication, and Community, Oxford: Oxford University Press.Dzur, A., & Mirchandani, R. (2007), ‘‘Punishment and Democracy. The Role of Public Deliberation,’’

Punishment and Society, 9, 2, 151–175.Elster, J. (1986), ‘‘The market and the forum: Three varieties of political theory,’’ in Foundations of social

choice theory, ed. Elster and Aanund Hyland, 103–32. Cambridge: Cambridge University Press.Feinberg, J. (1965), ‘‘The Expressive Function of Punishment,’’ The Monist, 49, 397–423.Gargarella, R. (2012), ‘‘Law and Social Protests,’’ Criminal Law and Philosophy, vol. 6, 15–27.Garland, D. (2002), The Culture of Control, Chicago: The University of Chicago Press.Habermas, J. (1996), Between Facts and Norms; Cambridge: MIT Press.Hampton, J. (1984), ‘‘The Moral Education Theory of Punishment,’’ Philosophy and Public Affairs, vol. 13,

n. 3, 208–238.Johnstone, G. (2000), ‘‘Punishment and Society. Elitist, populist or participatory?’’ Punishment and Society,

2, 2, 161–180.Martı́, J. (2009), ‘‘The Republican Democratization of Criminal Law and Justice,’’ in S. Besson & J.L.Martı́,

Legal Republicanism, Oxford: Oxford University Press.Murphy, J. (1973), ‘‘Marxism and Retribution,’’ Philosophy and Public Affairs 2, 217–43.Nino, C. (1980), Los lı́mites de la responsabilidad penal, Buenos Aires: Astrea.Nino, C. (1983), ‘‘A Consensual Theory of Punishment’’, Philosophy and Public Affairs, vol. 12, 289–306.Nino, C. (1996), The Constitution of Deliberative Democracy, Conn.: Yale Univ. Press.Nino, C. (1996b), Radical Evil on Trial, Conn.: Yale Univ. Press.Pettit, P. (1997), ‘‘Republican Theory and Criminal Punishment,’’ Utilitas 9, n. 1.Pettit, P. (1997), Republicanism, Oxford: Oxford University Press.Pettit, P. (2002), ‘‘Is Criminal Justice Politically Feasible?’’ 5 Buffalo Criminal Law Review, 427.Roberts, J. et al (2002), Penal Populism and Public Opinion, Oxford: Oxford University Press.Ryan, M. (1999), ‘‘Penal Policy Making Towards the Millennium: Elites and Populists; New Labour and the

New Criminology,’’ International Journal of Sociology of Law, 27, 1–22.Zimring, F., Hawkins, G., Kamin, S. (2001), Punishment and Democracy. Three Strikes and You’re Out in

California, Oxford: Oxford University Press.

Crim Law and Philos

123