Law & Society Blog

I posted a near final draft of my review of Michael Pawlik’s new book Person, Subjekt, Bürger on SSRN. Pawlik’s retributive account of punishment theory is similar in many ways to the themes that I explore in my book about censure and hard treatment. (A draft version of which is here.) The similarities are not surprising, given that Michael and I were both graduate students at the University of Bonn and Günther Jakobs was our Ph.D. thesis supervisor.

In a nutshell, punishment can only be justified to the extent that it promotes freedom. Most consequentialist accounts trade off the freedom (e.g., through increased security) gained by others against the loss of freedom of the criminal. As long as the net gain is positive, freedom is increased and punishment legitimate. Pawlik rejects that approach. For him, following Kant, Hegel, Fichte and others, punishment must not only increase or affirm the freedom of others but also that of the criminal. How is that possible? Obviously not on the basis of a naturalistic account of freedom.

Pawlik identifies three dimensions of freedom, that of the person, the subject, and the citizen. Personal freedom is abstract freedom of action (e.g., the potential to build a house), subjective freedom is realized freedom of action (e.g., the finished house), and the “freedom” of the citizen is the implied obligation to contribute to a state of affairs in which both the freedom of the person and that of the subject can be maintained. (An important move, which is fraught with problems but also has significant promise.) Corresponding to the three dimensions of freedom are three dimensions of the criminal wrong. In Pawlik’s words

One and the same criminal act, the culpable violation of a duty, may be discussed on different planes of interpretation: as unjustified diminution of someone’s potential to act, as disregard for someone else’s plan of life, and finally as breach of the civic duty to contribute to the maintenance of a common state of freedom. (My translation.)

Punishment, not surprisingly, has three dimensions too, which correspond to those of the criminal wrong. Restitution responds to the personal and subjective wrong, restoring interpersonal recognition and enduring hard treatment as the criminal’s punishment reaffirms the institutional recognition that the criminal cannot unilaterally renounce.

This thumbnail doesn’t do justice to Pawlik’s nuanced argument. My main criticism is his categorical rejection of consequentialism. While I don’t deny the problems with purely consequentialist accounts, rejecting them wholesale goes too far. We can’t escape the fact that our moral intuitions are rooted in (at least) two concepts, utility and right, that are incompatible if pushed to their logical extremes. A complete theory can’t ignore the problem or resolve it in a quasi-definitional manner.

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