I. Introduction
Tasked with determining if there is a serious alternative to liberalism as a political theory, I will – after a brief introduction into what constitutes political liberalism – have to decide which criteria I will apply to test possible alternatives to it.
Due to the limited scope of this essay, I will then concentrate on the subjects of judicial punishment1 and democracy in order to examine whether any of the alternative political theories to liberalism have better answers to the questions thrown up by these two areas of political and philosophical debate.
II. Political liberalism
Political liberalism “denotes a family of positions centred around constitutional democracy, the rule of law, political and intellectual freedom, toleration in religion, morals and lifestyle, opposition to racial and sexual discrimination, and respect for the rights of the individual.”2 In contrasting liberalism with political theories which put more emphasis on society as a whole, liberal thinkers believe tat “political organizations are justified by the contribution they make to the interest of individuals, interest which can understood apart from the idea of society.”3 Liberals “reject both the view that cultures, communities and states are ends in themselves, and the view that social and political organizations should aim to transform or perfect human nature.”4
While liberalism is based on the belief that “the individual person is what matters”5 and that this person’s freedom is important6, this common philosophical point of origin can lead to vastly different conclusions. Branches of liberalism, ranging from egalitarianism7 to libertarianism8, appear so different from each other9 on first sight and the debates among their respective proponents are so fierce that one could easily forget their common historical roots and could instead regard them as serious alternatives to each other.
Treating different branches of political liberalism as alternatives to political liberalism itself would further complicate the question before us in this essay which is why I have decided against doing so. This is also the reason why I concentrate on judicial punishment and democracy because it seems to me that the differences between the different branches of liberalism are smallest there, as opposed to social or redistributive justice for example.
III. Methodology to decide which alternatives are serious alternatives
The toughest methodological question that I need to decide before embarking on a comparative analysis of different schools of political philosophy is how to decide what constitutes a “serious alternative”. I have a feeling that it will be hard to completely suspend my own beliefs and preferences10 for one or more of the competing political theories for the time during which I will examine and contrast them with each other11.
To illustrate the problem of what constitutes a “serious” alternative with an extreme example: if I argue with a dictator, he might well think of totalitarianism12 as a serious, or in his eyes even superior, alternative to liberalism. I assume that there is – by now – widespread agreement within the professional community that totalitarianism is no serious alternatives when it comes to the question of how to organise our society. But for contrasting liberalism with communitarianism13, utilitarianism14 and Marxism15, we can’t jump to the same conclusion that easily.
The following criteria for evaluating competing political philosophies come to mind:
- If one political philosophy is acceptable to all or preferred by all, it would be hard to argue against it16. But in larger societies, this will be impossible to achieve and the requirement of unanimity would give one person the power to block the implementation of a political philosophy which is favoured by the remaining 99.99 %. Some try to evade this problem by calling for unanimity among the reasonable17, which I find less than helpful because it shifts the argument to what “reasonable” is. If in a vote about the preferred system of political philosophy, only the votes of those who are deemed reasonable are counted, then this is deeply undemocratic and gives disproportionate power to whoever decides what is supposed to be reasonable.
Also, especially in larger societies, it is impossible to find 100% agreement even between reasonable persons18. In The Domain of the Political and Overlapping Consensus, Rawls19 is expressly sceptical about the use of reason. In the chapter “Burdens of Reason”20, he lists a number of reasons why people are not exclusively swayed by reason and also why the use of reason won’t necessarily lead to agreement. After all, there is plenty of room for “reasonable disagreement”21.
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Taking a step back from the unanimity requirement, we could ask: is the political philosophy in question acceptable to the majority? Or, if all of them are, which one enjoys greatest support?
Accepting this as a requirement would mean accepting democracy as something good or helpful, which could be deemed circular. On the other hand, this will allow me to already discuss the problems that democracy throws up for liberalism at this stage.
One obvious objection to a majority decision is that it could severely harm or deny the rights of the minority. Democracy without any limitations leaves “the possibility that [it] could affect a minority in a way that [is] incompatible with liberalism”22. In an extreme case, 51 % of the population could agree on enslaving the other 49 %, something which obviously would be deeply illiberal.
Most societies23 have solved this clash by introducing two different levels of decision making: they have a constitution, usually passed with a larger majority than normal laws and thus harder to amend, which sets out the basic principles24 which all other laws have to adhere to25. Thus a framework is established which limits the free will of the legislative branch, ensuring that the democratic decision-making does not encroach on the civil liberties of the individuals in that state.
Because both the constitution and the remaining normal legislation have been passed democratically, the self-restraint imposed on the legislative powers has democratic legitimacy. The constitutional court26 may overturn laws passed by a majority27 but because it does so based on the constitution which had previously been passed by a larger majority (and which could be amended with an equal majority) this does not violate the principle of democracy.
As the history of constitutional democracies around the world shows, democracy and liberalism can be reconciled.
- Another possibility would be to require the consent of the majority under the additional condition that the vote takes place behind Rawls’ veil of ignorance28. If none of the voters or legislators know whether they belong to the 51 % or the 49 % of the above example29, they would refrain from passing a law that exploits the 49 % for fear of finding themselves within that group after the veil of ignorance will be lifted.
In a certain limited way, establishing a constitution as the binding basis for all future legislation is a way of achieving the effects which are intended by the thought experiment of the veil of ignorance because the constitution sets the stage for the development of a society with which at least all of those who can support that constitution will be fine, regardless of where in that society they will find themselves in the future.
- The social contract model can be used in a very similar way, asking if a certain political philosophy would be something that members of a society/country could agree on as the basis for them living together and the basis of erecting something like a state. This will be especially useful once we get to the subject of criminal punishment, “by asking what assurances would have to be given to each individual to secure their consent to the basic structure of social arrangements”30.
- Two other criteria to which to submit potential political philosophies are the means/end constraint and the reason constraint, both of them introduced by Immanuel Kant31.
a. The means/end constraint requires that we “never treat persons simply as a means to some independently specifiable end”32.
b. The reason constraint requires that we “treat people in a way that engages with their reason rather than, for example, their fears”33. It is probably easiest understood by comparing it with the treatment of an animal which can be trained and conditioned, whereas “persons are rational agents capable of understanding and of choice”34. If a certain behaviour is expected from a person, he or she may be argued and reasoned with35, but the authority must not appeal to that person’s fears or instincts.
I find these two constraints preferable over the democratic requirements of unanimity or (qualified) majority or the thought experiments like the veil of ignorance and the social contract because they are independent of polling or voting, both of which I cannot perform within the scope of this essay, and also independent of imagining or guessing how people would decide in a fictional situation.
IV. Comparing different political philosophies with regards to their theories of punishment
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Liberalism and punishment
Punishment “is an authority’s infliction of a penalty on an offender”36 and thus at least “appears to involve overriding a person’s autonomy”37, making it sound like a deeply illiberal measure which could never be reconciled with liberalism. John Kekes for example uses liberalism’s alleged “inability to deal adequately with the problem posed by ‘the prevalence of evil’”38 as an argument against liberalism. Kekes argues that “liberalism can deal with this problem only by retreating from its most fundamental commitment”39, its commitment to autonomy4041.
There is the option of solving this problem by not regarding offenders as persons42, but in line with the argument presented in my previous essay about what constitutes a person43, I will continue to hold the conviction that all human beings are persons and are to be treated as such44. Treating someone as a person requires us (and the punishment-issuing authority) to respect that someone’s autonomy45.
Neither do I accept Rousseau’s argument that offenders should be regarded as persons but have some aspects of their autonomy suspended46 because I regard even enemies of the state or enemies in war as persons and because I believe it is imperative not to start differentiating between persons of a first order and persons of a lesser second order.
This leaves me with two options only47: I can either argue that punishment does respect the offenders’ autonomy and thus an important criterion of liberalism or I have to “admit that punishment does not respect their autonomy”48 and would then have to give up on either liberalism or on punishment. I plan to show that there is a justification of punishment that treats the offender as an autonomous individual and respects his/her autonomy and can thus be reconciled with liberalism.
There are three traditional major theories of the justification of punishment49: deterrence, rehabilitation and retributivism. I will focus on (special or specific) deterrence because I believe it is the sole theory to accommodate the reason constraint and thus the sole justification of deterrence permissible in a liberal state50.
Deterrence consists of two main aspects which face quite different philosophical problems and thus always have to be recognised and discussed as two different aspects:
a. Special deterrence51 52 aims at the offender himself/herself. The punishment shall serve as a reminder to the offender of the consequences of his or her criminal action for himself/herself and shall thus make him or her refrain from (at least similar) criminal acts in the future53.
b. General deterrence54 seeks to deter potential imitators. The punishment shall serve as a reminder of what the consequence would be for someone else if they were to break the law in a similar way as the offender in question.
One obvious problem with general deterrence is that it violates the means/end constraint55 because it uses one offender as an example for others to learn from it. When A, B, C and D commit the same crime independently from each other and only B is caught and brought to court, it is hard to see why B should bear the burden of being punished in order to serve as an example for the rest of the population. It is hard to see how the (possible future) actions of others, on whom B has no influence, can be used as a justification for punishment in the relationship between the state and B.
Based on the definition of deterrence as avoidance of a given action through fear of the consequences56, some argue that deterrence violates the reason constraint because behaviour is attempted to be influenced “through threats and coercion”57.
I don’t find this convincing as I cannot see a direct threat or coercion. People are free to choose if they offend or not. In a state governed by the rule of law58 they more or less know what the law is59, they can look it up before deciding whether to offend and they can trust that the law won’t be changed after the fact and applied retroactively. This situation is indeed much better captured by John Rawls’ “price system” model60 or as part of the “economic theory of law”61, in which offenders are viewed “as having voluntarily chosen to risk penalties as the price of disobedience”62 and punishment “supplies a motive for avoiding some actions and doing others”63 64. I find this a realistic depiction of most offenders’ thinking, as is demonstrated by research that would-be offenders are not put off by harsh sentences65, but by a high likelihood of being detected and convicted66 or a combination of these two risks. This cannot be compared to animals being trained or conditioned as it still leaves people the choice between obeying or disobeying the law, whereas someone who trains a dog doesn’t want this animal to have a choice and doesn’t want the dog to exercise the canine equivalent of a free will.
If such a thought process as deterrence seeks to achieve, and it is a thought process even if it will work subconsciously most of the time, is deemed to be influenced through threats or coercion, then all (and not only economic) activity would violate the reason constraint. Indeed, me writing this essay would, because I submit it in the face of the threat of failing the course. But unlike a conditioned animal, I can make an informed decision about my priorities (writing this essay versus going to the cinema) and so can the potential offender (weighing up the potential benefits of criminal action versus the risk of getting caught and punished67 and contrasting this with legal means to achieve his ends or – if this seems impossible – substitute ends).
In order for the reason constraint – and thus autonomy as one of the main principles of liberalism – to be satisfied it is enough that potential offenders are treated as rational actors making autonomous decisions about their actions in view of the consequences. It is not necessary that they agree with the content of the law68, they must only know about it.
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Communitarianism and punishment
Communitarianism is the term for a broad tent under which many political philosophers come together who are critical of liberalism for its focus on the individual69. Although “there is no common creed to which [communitarian] thinkers all subscribe”70, communitarianism “emphasizes the […] importance of belonging to communities”71 and that “the possibilities for justifying ethical judgements are determined by the fact that ethical reasoning must proceed within the context of a community’s traditions and cultural understandings“72.
In the context of judicial punishment, communitarian thinkers have developed the communicative theory which seeks to “communicate a moral message to the offender”73: “The point of punishing the offender is to strengthen his or her attachment to the human good.”74
The communicative theory claims to treat the offender as an autonomous individual75 and sees a principal justification for punishment in “the potential and actual wrongdoer’s good”76. However, I am intuitively suspicious abut this, maybe because some proponents of the communicative theory draw heavily upon religious ideas and language7778 and I don’t associate religion with reason.
The real test for the communicative theory has to be performed with the example of the offender who doesn’t want to be “good” or “moral” or who views something else as good because after all “those who are punished may not share the values of the law-abiding”79.
If the sole justifying theory for punishment was the communicative one, no punishment would be justified if the offender made it clear (or if it became obvious in any other way) that his/her opinion about what is good or right won’t change, regardless of how much communication would be directed at him/her80.
On the other hand, the communicative theory offers no justification for punishment with regards to an offender who knows perfectly well what is good, moral or legal and who acknowledges his or her guilt and plausibly vows not to re-offend. According to the communicative theory, nothing more can be achieved and the offender would simply walk free81.
Many proponents of the communicative theory recognise its fallibility82 and try to save it by demanding that censure should be communicated through penal hard treatment8384 “because this will give those who are insufficiently impressed by the moral appeal of censure prudential reason to refrain from crime”85. The moralising, communicative theory reverts to the “brute language of threats”86, thus admitting that without a deterrent element (which in the eyes of the offender might very well outweigh any communicative intent87) this theory is ineffective88. And shy about the use of force the proponents of the communicative theory are not: “The art of punishing is the art of awakening in a criminal, by pain or even death, the desire for pure good“89. The offender is no addressee of reason at all, he/she is being treated as an object whose opinion and moral views need to be broken (the communicative theorists will call it “reformed”), and if necessary the person holding these views needs to be broken with them. The reason constraint could not be violated more obviously.
The judgement that I dare pass on the communicative theory is devastating because this theory strives to change offenders’ opinion, their values, their beliefs. This is something which I think goes beyond the business of the state90. I do agree that the democratically elected majority in a state’s parliament can determine what is a crime91 and what is not, but I do not want to see the state trying to impose its (the majority’s) moral beliefs onto each individual citizen. Although it might be ideal if a criminal trial convinces the offender to accept the law92, the law cannot make its acceptance a requirement9394. This would go beyond the normal realms of law enforcement and cross the threshold to a “thought police”. Neither the state, nor criminal law must be concerned with somebody’s bad morals as long as these do not translate into actions.
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Utilitarianism and punishment
John Rawls’ liberalism was in a way a reaction to utilitarianism which had been the dominating political theory until the publication of A Theory of Justice95. According to (act-)utilitarianism an action is right if it maximises total or average utility96.
One criticism of utilitarianism is that “it matters not just how much utility there is, but how it is shared around“97. This is not only a problem in social justice, but also in criminal justice. It is easy to imagine scenarios where one person will be punished to increase the utility of many others. One “example requires a utilitarian sheriff to hang an innocent man, so as to prevent a riot and bring about the greatest overall happiness possible in the circumstances“9899.
Utilitarianism may thus lead to situations in which the means/end constraint will be violated because one individual will be punished (the means) in order to increase the utility of others (the end). At least in the matter of judicial punishment, it is hard to see how this would be preferable to liberalism.
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Marxism and punishment
In the area of criminal justice, it seems that Marxism does not even try to compete with liberalism. Marx himself did not exactly write with high regard of the idea of justice100. Contemporary Marxists argue that society as a whole would need to become more just before any individual punishment could be justified101, thus refraining from making a distinctive contribution to the debate about criminal justice in the here and now.
V. Summary
The questions of judicial punishment and democracy are by far not the only areas of interest when it comes to comparing political philosophies, but in these areas at least political liberalism has not been seriously challenged by any of the competing theories.
It should therefore not come as a surprise that states with a framework of political liberalism rarely decide to ditch this for something else, while other societies often strive to attain political liberalism for themselves. Or individuals from these other societies simply leave their countries, usually pursing a move to a more liberal country – where as immigrants they then often ironically and tragically run into the most illiberal aspects of even liberal states102.
The Happy Hermit 