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Punishment and Community: The Reintegrative Theory of Punishment

Published online by Cambridge University Press:  01 January 2020

Eric Reitan
Eric Reitan*
Affiliation:
Pacific Lutheran University, Tacoma, WA98447, USA
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Extract

There seems to be nearly universal agreement that society cannot do without some form of criminal punishment. At the same time, it is generally acknowledged that punishment, involving as it does the imposition of hardship and suffering, stands in need of justification. What form such a justification should take, however, is a matter of considerable contention, in part because of basic theoretical disagreements on the nature of moral obligation, and in part because of disagreements concerning the nature and purpose of criminal punishment itself.

These disagreements have given rise to a number of rival ‘theories’ of punishment - rival accounts of the purposes of punishment and the conditions which justify it. The traditional theories can be broadly categorized as deterrence theories, incapacitation theories, retributive theories, and rehabilitative theories (broadly conceived to include moral education theories). My purpose here is to contribute to this discussion on punishment by introducing a largely overlooked theory of punishment, one whose outlines can be found in the writings of Simone Wei!, but which has yet to be fully developed and discussed. This theory, which I call the ‘reintegrative theory,’ has, I believe, a number of advantages over more traditional theories of punishment.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 26 , Issue 1 , March 1996 , pp. 57 - 81
Copyright
Copyright © The Authors 1996

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References

1 More precisely, Dewey, John takes community to be characterized essentially by ‘conjoint activities whose consequences are appreciated as good by all persons who take part in it, and where the realization of the good is such as to affect an energetic desire to sustain it.’ See The Public and Its Problems (Chicago: Swallow Press 1984), 149Google Scholar.

2 Alisdair MacIntyre has taken the family to be a paradigm of community, along with the city, the tribe, and the nation. Macintyre's concept of community is, however, clearly different from community in the normative sense, since not all families, tribes, etc., show respect for one another's needs and interests. For Macintyre community is found in a group when it is united by a common history, culture, and tradition- but these uniting bonds do not guarantee mutual concern. See Macintyre, Alisdair After Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press 1981), 205Google Scholar.

3 Mason, Andrew ‘Liberalism and the Value of Community,’ Canadian Journal of Philosophy 23 (1993)CrossRefGoogle Scholar. Mason does a good job of distinguishing community in its normative sense from community as it has been understood by such contemporary thinkers as Alisdair Macintyre, Richard Rorty, and Michael Sandel, who, he thinks, have all neglected to some extent the normative sense of community. Moravscik, Julius (‘Communal Ties,’ Proceedings of the American Philosophical Association 62 (1988) 211-25)Google Scholar and Martin, Jane Roland (Reclaiming Conversation (New Haven: Yale University Press 1985)Google Scholar also articulate conceptions of community in what I take to be its normative sense, in which interactive strategies and attitudes are given a central place.

4 Reitan, Eric ‘The Ethics of Community: The Metaphysical and Ethical Presuppositions of AVP,’ The Acorn 7 (1992), 21CrossRefGoogle Scholar

5 Dean Pruitt has used the expression ‘integrative solution’ to refer to such mutually beneficial resolutions to conflicts.

6 These include strategies for separating people from problems, uncovering the interests that underlie expressed positions, and devising creative options for resolving problems. See Fisher, Roger and Ury, William Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin 198l)Google Scholar.

7 Weil, Simone ‘The Needs of the Soul,’ in The Need for Roots (New York: G.P. Putnam's Sons 1952), 21Google Scholar

8 Murphy, Jeffrie ‘Kant's Theory of Criminal Punishment,’ reprinted in Retribution, Justice, and Therapy (Boston: D. Reidel 1979), 83CrossRefGoogle Scholar. It is interesting to note that in Murphy's scheme punishment, by exacting the debt owed by the criminal to society, enables the criminal to ‘re-enter the community of good citizens on an equal status' (84). Thus Murphy's understanding of the stigma associated with crime leads him towards a view of punishment that bears some similarities to my reintegrative account. There are, however, a few critical differences between Murphy's theory and the one I develop here. First, the community of good citizens is defined by Murphy according to a contractual model in which self-interest drives autonomous individuals to conform to law, whereas in my scheme this community is defined by mutual care. Second, for Murphy reintegration is an effect of punishment but not the justification for it - the demands of fairness and rational consistency, rather than the goal of building community, provide the justification. Murphy's account of retribution can, however, be incorporated within the reintegrative theory to explain the stigma of the crime. Thus the two theories are not strictly opposed. A deeper discussion of the relationship between the two theories is warranted, and will be the subject of a future paper.

9 Hampton, Jean and Murphy, Jeffrie G. Forgiveness and Mercy (Cambridge: Cambridge University Press 1988) 122-43Google Scholar

10 For a good discussion of Weil's views on justice, see Winch, Peter Simone Weil: ‘The Just Balance’ (Cambridge: Cambridge University Press 1989), esp. ch. 14CrossRefGoogle Scholar.

11 Morris, Herbert ‘A Paternalistic Theory of Punishment,’ American Philosophical Quarterly 18 (1981) 263-71Google Scholar; Hampton, Jean ‘The Moral Education Theory of Punishment,’ Philosophy and public Affairs 13 (1984) 208-38Google Scholar. For a critical discussion of this kind of theory, See Shafer-Landau, Russ ‘Can Punishment Morally Educate?’ Law and Philosophy 10 (1991) 189-219CrossRefGoogle Scholar.

12 Dilman, Ilham Morality and the Inner Life (London: Macmillan Press 1979), esp. 203-4CrossRefGoogle Scholar; see also Duff, R.A. Trials and Punishments (Cambridge: Cambridge University Press 1986), 57-8, ch. 9Google Scholar.

13 See Morris, 265-6. See also Hampshire, ‘Moral Education,’ 227Google Scholar, for a slightly different account of how the hard treatment of punishment educates the criminal. According to Hampshire, the hard treatment is intended to ‘represent’ the pain suffered by the criminal's victims, thus enabling the criminal to identify with the victim and recognize the wrongness of what was done. It is plausible to suppose that punishment educates in both the way I suggest and in the way Hampshire emphasizes.

14 Niebuhr, Reinhold ‘Pacifism and the Use of Force,’ reprinted in Robertson, D.B. ed., Love and Justice: Selections .form the Shorter Writings of ( Reinhold Niebuhr (Cleveland: World Publishing 1967)Google Scholar, 250-l; See also Morris, 270.

15 Niebuhr, ‘God's Justice and Mercy,’ reprinted in Brown, Robert McAfee ed., The Essential Reinhold Niebuhr (New Haven: Yale University Press 1986), 29Google Scholar. E.M. Forster makes a similar point at the end of A Passage to India.

16 Murphy makes the point powerfully in ‘Marxism and Retribution,’ Philosophy and public Affairs 2 (1973) 217-43.

17 See Morris, 268.

18 In this respect, the reintegrative theory of punishment is more in harmony with recent work in feminist ethics than with the Kantian tradition. The feminist emphasis on care and responsibility to relationships rather than on rights and justice can serve as a powerful foundation for the reintegrative theory. See especially Gilligan, Carol In a Different Voice (Cambridge: Harvard University Press 1982)Google Scholar and Noddings, Nel Caring: A Feminine Approach to Ethics and Moral Education (Berkeley: University of California Press 1984)Google Scholar

19 Murphy, ‘Marxism,’ 243Google Scholar.

20 Bedau, Hugo Adam ‘Punitive Violence and its Alternatives,’ in Brady, James and Garver, Newton eds., Justice Law, and Violence (Philadelphia: Temple University Press 1991) 203-4Google Scholar

21 See Duff, 66-7.