Penal Censure

Engagements Within and Beyond Desert Theory

Antje du Bois-Pedain, Anthony E Bottoms

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509919796
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This exploration of penal censure is inspired by the 40th anniversary of the publication of Andreas von Hirsch's Doing Justice, which opened up a fresh set of issues in theorisation about punishment that eventually led von Hirsch to ground his proposed model of desert-based sentencing on the notion of penal censure. Von Hirsch's work thus provides an obvious starting-point for an exploration of the importance of censure for the justification of punishment, both within his theory of just deserts and from the perspectives of other theoretical approaches. It also provides an opportunity for engaging with censure more broadly from philosophical, sociological–anthropological and individual–psychological perspectives. The essays in this collection map the conceptual territory of censure from these different perspectives, address issues for desert theory that arise from fuller understandings of censure, and consider afresh the role of censure within the jurisprudence of punishment. They show that analyses of censure from different vantage points can significantly enrich punishment theory, not least by providing a conceptual basis for perceiving common ground between and thus connecting different strands of penal theory.

Part I

Censure: Mapping the Conceptual Territory

1

The Architecture of Censure

JOHN KLEINIG

Andreas von Hirsch has done much to give censure a central role in the theory of legal or state punishment. He does not exactly identify censure with punishment, though he views it as integral to it. His conjunction, ‘Censure and Sanctions’ – the title of his influential 1993 monograph¹ – puts in a nutshell the two elements that, for him, together constitute state punishment.

The structural or architectural elements of the sanctioning or ‘hard treatment’ dimension of punishment have been endlessly (even if contentiously) discussed. Those of censure have garnered somewhat less attention.² If censure is intended to illuminate punishment theory in some way, is the light it brings clear enough? Is it of the right kind?³ Does it introduce problematic issues of its own? My purpose in this chapter is to reflect on some of these questions, and to suggest that focusing on censure can distort the discussion in certain respects.⁴

I argue that there are three dimensions to censure – a performative one, in which censure brings about a change in social status; an expressive one, in which censure rebukes or expresses condemnation; and a communicative one, in which what is conveyed to the offender is the seriousness of what was done. In other words, I’m going to give a stronger account of censure than is usual.⁵

Further, I suggest that although censure may have a central place in a moral theory of state or institutionalised punishment, it is not as well suited to the moral justification of punishment per se. It does not fit well with the moral framework envisaged by early liberal theorists, such as Locke, who saw the moral right to punish as natural, pre-existing the conventions of civil society.⁶ Within that scenario, the moral criticism and rebuke – resentment/indignation and condemnation – that punishment expresses does not carry with it some of the conventional trappings that we generally associate with censure.

The importance of this is that censure is integral only to an account of institutionalised punishment, including that by the state. As we cede to civil authorities (inter alia) the task of securing our fundamental rights, so we also cede to those authorities a primitive or natural or moral right to punish certain of the wrongs that are inflicted on us or others.

So far as punishment theory is concerned, the primary focus should be on moral rebuke and communicative proportionality. In the case of legal or conventionalised punishment, censure – an institutionally constructed vehicle for condemnation – is also involved. In addition, I suggest that the institutionalisation of punishment helps to determine standing – the authority to be an agent of punishment, and thus potentially provides the state with a reason for its involvement in a form of social response that has its deepest (though not only) rationale in considerations of justice or moral desert.

Does this involve some major shift from what von Hirsch and I have argued and occasionally sparred over? Not really. Reading over what he and I have written in the past 40 years, I often have a sense of déjà vu. That said, I think of the present essay as offering a few clarificatory steps in what is mostly a jointly shared position.⁷

I.STRUCTURAL ELEMENTS IN CENSURE

I begin with an exploration of what I take to be the implicit form adopted by acts of censure:

A censures B for Ø-ing, expressing and communicating it by Π-ing B

I/we censure you for Ø-ing, and express and communicate it by Π-ing you.

First of all, though, and perhaps as an explanation for offering a first-person form of the schema, I wish to make the point that, lest the first version be construed as a simple proposition that is true or false (what JL Austin termed a ‘constative’) or even as the communication of such a proposition, censure is better seen as a complex version of what he characterised as a ‘performative’.⁸ That is, a suitably placed person who pronounces ‘I censure you for Ф-ing’ or ‘I convict you for Ø-ing’ acts to censure the other (by, inter alia, Π-ing B). The verbal act of censuring – which marks someone out as a transgressor – includes but is not exhausted by the particular form of words that convey censure. In other words, Π-ing B without words of censure does not amount to censure, and uttering ‘I hereby censure you’, or another phrase understood to express censure, without conveying this through Π-ing, falls short of censure.⁹ There is more to censuring someone than looking disapprovingly at, reprimanding, or even imposing a hardship on that person.

A critical phrase is, of course, ‘suitably placed’. There are conditions that must be satisfied if a censuring act is to be ‘felicitous’ (another Austinian term of art) or successful (rather than true or false).¹⁰ These felicity conditions (fc) include, somewhat schematically:

•fc-1a There must exist an accepted conventional procedure having a certain conventional effect, a procedure that includes the uttering of certain words by certain persons in certain circumstances and, further,

•fc-1b the particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invoked.

•fc-2a The procedure must be executed by all participants both correctly and

•fc-2b completely.

•fc-3a Where, as often, the procedure is designed for use by persons having certain thoughts or feelings, or for the inauguration of certain consequential conduct on the part of any participant, then a person participating in and so invoking the procedure must in fact have those thoughts or feelings, and the participants must intend so to conduct themselves, and further

•fc-3b must actually so conduct themselves subsequently.

I think that Austin overformalised these conditions – they function more as paradigmatic than as necessary and sufficient conditions. For example, I can imagine a situation in which a judgement of censure does not get to its object, B (because B died prior to its communication) – but I doubt whether that would cause me to claim that B was not, after all, censured. I don’t think that treating them as paradigmatic conditions makes Austin’s conditions less useful, as they capture something of importance for the overall structure of censure.

As Austin put it, performatives are infelicitous if they misfire or constitute abuses of the convention. Misfires, which invalidate the act, occur when there is a failure with respect to conditions fc-1 or fc-2. In such cases, what is said or done does not achieve its intended purpose.¹¹ There is no censure. Abuses occur when the conditions associated with fc-3 are violated, and the act is deemed ‘unhappy’ though not void.¹² The censure is inappropriate.

Let me, then, turn in order to A (the censuring party), B (the censured party), Ø (the censured behaviour), and Π (the act of censure).

A.The Censuring Party (A)

Who or what may censure?

We need not spend too much time debating the idea that censure is centrally a human activity. Machines and mere biota do not censure. Even animals do not censure: that most domesticated of animals, the dog, is often loved precisely because it appears to be free from the judgemental and censuring behaviour that often makes the company of our fellow humans so onerous.¹³

But may anybody censure?

First, to develop the point just raised, censure requires the development or possession of certain internal capacities. Infants cannot censure; nor can those in certain states of decline or unconsciousness. It also requires various active capacities for normative judgement. Censure is ordinarily an expression of responsible (in contrast to non-responsible rather than irresponsible) agency. That agency will involve the development of self-consciousness and certain cognitive, emotive, and conative capacities – making it unlikely that a mere machine, however capably programmed, could censure (as distinguished from conveying the censure of others).¹⁴ In addition, censure almost certainly requires, on the part of the censurer, a certain self-conception or self-consciousness of what is being done when censuring takes place. In censuring, one knows (or should know) what one is about. There is an intentionality about censure, captured in Austin’s idea of an illocutionary act. But that is not all.

Second, perhaps the most general and undifferentiating point, censuring seems to presume someone with appropriate standing. May a child censure a parent, a citizen censure the government, a church member the priesthood? At first, and maybe second, blush it is questionable whether they can. At least it sounds somewhat stilted to suggest that they can. Or, if they can, we need to tell a story to make plausible sense of it.¹⁵ Certainly they can complain about or criticise their respective objects, express disapproval of them, and even (in some sense) blame them. But censure seems to require something more: positional standing.¹⁶

Before I say more about the character of that positional standing, however, I note that the agent with standing need not be a particular individual but could be some institution, collectivity, or group – such as a committee, church, or court.¹⁷ Some years ago, within the US Congress, a committee was formed to determine whether President Bill Clinton should be censured for lying to Congress about his relationship with Monica Lewinsky. Even though the censure motion that was recommended did not – in the end – garner the required Congressional votes, it illustrated how certain formalised censures could be imposed by a collective body.¹⁸

Of course, highly formalised censure of the kind involved in the Clinton case is more tightly structured than is commonly the situation when A censures B, but the censure that punishment theorists have in mind differs in degree rather than kind. And that, I suggest, is probably because most punishment theorists tend to think about punishment within a legal/criminal offence paradigm. It is the court that censures (on behalf of the community? state? sovereign?) when it passes judgment and imposes a penalty.¹⁹

Returning to the issue of standing, censure includes for the most part a formalised or institutionalised judgment, requiring that the person who censures has the standing or authority to pass such a judgment (and whatever else expresses it), communicating it to the wrongdoer. Whether that authority is to be thought of simply as some kind of moral authority or is more appropriately seen in terms of certain conventions that ascribe inter alia the authority to censure is an issue to which I return near the end of this essay. Nevertheless, I want to suggest that to the extent that we link punishment with censure, the paradigm for censure will be an appropriately situated person or collective. This is why the dominant account of punishment in the literature sees it as an authoritative act.²⁰

Casting this in terms of Austin’s conditions for a felicitous performative, fc-1a and fc-1b capture what is required for standing. There must be conventions about who may perform the particular act and how the particular act is performed. That may be one reason for reluctance to call the acts of a lynch mob punishment, even if the language of vengeance may sometimes be apposite. As conventions, there may be little that is of deep or natural entitlement. In many cases, censure will be an option within an organisation that wishes to pass judgment upon and no doubt deter its members from conduct (Ø-ing) that is deemed to bring the organisation or collectivity into disrepute. There will be some understanding about what it is that brings such a body into disrepute, some procedure that it accepts for determining whether B’s acts have brought it into disrepute, and a process for declaring that B is or is not to be censured.

Standing to censure is likely to be relatively particularised and specific in the sense that social context will determine those who are accorded such standing and those with it will not ipso facto have the standing to perform other acts that require standing unless there are conventions giving them a wider remit. That is, if I have standing to censure B, someone else otherwise similarly situated may not have that standing, and if (say, in an employment context) I have standing to censure B I may not have standing to fire B. (Some parents might wish they had power to fire their children!) Parents may conventionally be seen as having standing to censure their child. That standing, however, may not always be thought to transfer to another’s child: ‘If you have a problem with my child – come and see me!’ And the kinds of censure available to a particular censuring authority may be quite limited. A school may censure a student by suspending her, but not by imprisoning her.

One final note. To the extent that censure is a performative, an act that has ‘social’ consequences of some kind, it is not removed or withdrawn by a change of heart (or the will of the person censured), but only as a result of some determination by the censurer or authority that oversees the act of censure. A Congressional censure can be removed only by Congressional action; an ecclesiastical censure can be removed only by absolution – unless, that is, a condition for its automatic removal is built into the original act of censure (say, being placed under censure for five years).

B.The Censured Party (B)

The object of censure is also typically a responsible agent, whether an individual or collective body. Unless one considers it capable of deliberate or at least culpable wrongdoing, it is inappropriate to censure an animal, even though one may rebuke, criticise or discipline it. Or, perhaps to put the point more neutrally, unless one views one’s pet as a person or responsible, censure will not be viewed as appropriate. Insofar as censure involves the accusation of culpable wrongdoing – which, I believe, it normally does – then the object of censure must be deemed capable of understanding and appreciating the act of censure in a certain way. (Whether or not it does understand and appreciate it in that way is another matter.)

The case of children is more complex. Although parents have positional standing, we may sometimes resist the language of censure because of the developmental nature of child-raising.²¹ We chastise and discipline children as readily as we censure and punish them.

May one censure the dead? I guess that insofar as the act of censure may involve certain formal processes, those formal processes could be followed in the event that their object is no longer alive. The censure would apply to what was done by the person while alive and would be seen as affecting the person’s legacy. Take President Andrew Jackson, in respect of whom a 1837 Congressional vote expunged the 1834 censure that Congress had imposed on him for his refusal to hand over certain documents. Plausibly, this v...

Table of contents

• Cover
• Title Page
• Table of Contents
• List of Contributors
• Introduction
• PART I: CENSURE: MAPPING THE CONCEPTUAL TERRITORY
• PART II: CENSURE AND JUST DESERTS REVISITED: ISSUES FOR DESERT THEORY
• PART III: CENSURE, DESERT AND THE JURISPRUDENCE OF PUNISHMENT
• Index
• Copyright Page