Communicative Theory

Citation

Duff RA (2024) Communicative Theory. In: Ryberg J (ed.) The Oxford Handbook of the Philosophy of Punishment. Oxford: Oxford University Press, pp. 90-112. https://doi.org/10.1093/oxfordhb/9780197750506.013.6

Abstract
This chapter explains and defends a communicative theory of punishment, according to which the distinctive justifying aim of punishment is to achieve a two- way communication between polity and offender. To that end, I begin by suggesting that we can make plausible sense of the basic retributivist thought that wrongdoers should not be able to enjoy impunity for their wrongdoing by saying that they should be called to account for it (section 6.1). Such calling to account is a communicative enterprise; in section 6.2 I distinguish communication as a two- way, rational process from mere expression. I then discuss the criminal trial as a communicative process of calling to account (section 6.3), before tackling the question of why this should lead to the imposition of material burdens as punishment (section 6.4). Punishment should communicate censure from polity to offender, but should also constitute a kind of reparation that is to communicate the offender’s apologetic recognition of his crime to the polity; that is why it must consist in something materially burdensome. Section 6.5 clarifies some important issues concerning the nature of the apology that punishment should involve, the role of remorse, and the material modes of punishment that such a theory can justify. Finally, section 6.6 deals with the question of whether a communicative theory must allow a role to prudential deterrence: a plausible answer is that in a system of communicative punishment that is apt for beings like ourselves (human beings), the kind of dissuasion that provides part of the purpose of punishment will probably have an ineliminable, albeit secondary, deterrent dimension.

Keywords
apology; communication; criminal law; criminal trials; deterrence; impunity; punishment; reparation; responsibility; retributivism