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DOI 10.1007/s11572-013-9269-y
BOOK REVIEW
These problems will explain his justifiable enthusiasm with the jury, restorative justice and other legal
mechanisms that could contribute to close social distances between offenders and victims, and between the
people who commit offenses and the people who live near them and will live near them when the are done
making amends (39). These responses, Dzur assumes, can promote peoples civic capacities, stressing our
interconnectedness and relationships that link us together (ibid.).
R. Gargarella (&)
Universidad de Buenos Aires/CONICET, Buenos Aires, Argentina
e-mail: roberto.gargarella@gmail.com
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In addition, and perhaps more significantly, the two main options that have been gaining
force in the place of a more democratic justice, clearly dishonours the values that democratic justice wants to protect.
The first alternative in question is penal populism, which once and again seems to recover
attraction within contemporary criminal law. One crucial, relatively recent example of penal
populism is the three strikes and youre out policy that California transformed in law in
1994 (an example that seems particularly upsetting for Dzur, who dedicates numerous pages
of his book to it). Penal populist measures are normally based on a suspicion of official
leniency regarding criminal defendants and convicted offenders, and rooted in a more
generalized distrust of officials in all branches of government along with the policy experts
and professionals who advice them (23). This general distrust in policy experts has usually
come together with pressures trying to assert public influence through bypassing the formal
government procedures seen as elitist and ineffective by many citizens (2324).
The second alternative in question is represented by the technocratic response to penal
populism (27). The implications of this response are serious because proponents of expert
justice challenge the very foundations of Dzurs project. They defy one of Dzurs main claims,
namely that lay citizens are well prepared to actively engage in politics and reflect upon fundamental legal issues. Not surprisingly, then, technocrats want to directly remove certain criminal
justice issues from the reach of the public. At the same time (and this results troublesome for
Dzurs project), defenders of expert justice want to achieve goals that are substantially similar
to the ones that guide Punishment, Participatory Democracy, & the Jury. Like Dzur, they dislike
penal inflation; they are against harsh punishment; and they want to treat offenders with mildness
and respect. The problem is that they believe that the only way of achieving these goals is by
depoliticizing democracy and reprofessionalizing criminal justice (27).
In his work, Dzur clearly distinguishes his proposal for a democratic justice from both
penal populism and expert justice (we shall come back to this issue below). At the same time,
the author tries to demonstrate the worth of the democratic alternative. In particular, he makes
a significant effort for justifying lay participation in criminal justice, an idea that is heavily
resisted or directly rejected within both legal and academic circles. Dzurs main argument in
this respect is that civic participation brings otherwise attenuated people into contact with
suffering human beings, draws attention to the ways laws and policies and institutional
structures prolong that suffering, and makes possiblealthough does not guaranteegreater
awareness among participants of their humanity (Dzur 2012, 14). Moreover, he claims this
kind of participation in public affairs helps individuals to become aware of the system of
cruelty in which the administration of punishment has become (16).
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lines that are very similar to those that correspond to a more robust theory of democracy,
such as a deliberative theory.
Now, in order to adopt a deliberative conception of democracy as his background theory,
Dzur would need to introduce some changes and refinements in his work. It is not only that the
deliberative view should come to play a larger place in his work, but also that his remarks on
democracyand particularly on the implications of democracyshould somehow be revised.
The particular version of deliberative democracy that I propose mainly assumes i) that all
those potentially affected by legal norms should participate in their construction; and ii) that
they should do so by engaging in a broad process of collective discussion. This particular
approach to deliberative democracy, I believe, is not pacifically accepted by all defenders of
this conception, but is still clearly linked to the view that many of its most prominent
defenders propose (see Elster 1986; Habermas 1996; Nino 1996a, b; Pettit 1997a, b).
Notably, the two main elements of this particular conception of democracyinclusion
and deliberationare very similar, although not identical, to the ones mentioned in Dzurs
book as the prerequisites of a legitimate law.2 Dzur, in effect, highlights the requirements
of inclusion and participation as the basic conditions of a legitimate law. However, it must
be noted, this second requirementparticipationcannot be taken as a synonym of
deliberation. Deliberation presupposes participation, but participation organized in a
particular way.3 For deliberative democrats, if the basic guarantees of a fair deliberation
are not in place (guarantees that favor a reasonable process of exchange of arguments), an
inclusive and participatory system could result in biased, prejudiced, self-interested
finally less impartial- decisions.4
The theory of deliberative democracy, which seems to fit well with Dzurs democratic
approach, has been quite productive within the area of criminal justice. We may recognize
traces of that view, for instance, in so-called expressive theories to criminal justice, which
justify punishment in relation to its particular communicative capacities (Feinberg 1965;
Hampton 1984).5 Contemporarily, the influence of this deliberative theory became clearer
2
In one telling paragraph, Dzur refers to the background legitimacy of the law as something the defendant
recognizes as his. Inclusion and participation thus must go all the way down, for in the absence of a political
community that treats citizens as co-owners, there can be no rightful expectation that one who violates the
law should feel ashamed and seek to make amends. How can he own up to violating a law that has not
treated him as a co-owner? (Dzur 2012, 91, emphasis added). The paragraph is particularly interesting
because it touches many of the critical interests of a deliberative view of democracy. It recognizes that the
legitimacy of the law is substantially linked to the way in which the law is created; it properly identifies that
inclusion and participation are fundamental prerequisites of a valid legislation; it adequately signals that a
legal system that does not treat every citizen as an equal (as a co-owner) is a flawed legal system.
I must acknowledge, however, that particularly at the end of his book, Dzur properly distinguishes
between three kinds of participation, namely plebiscitary, advocacy, and load bearing (163). He states:
criticism of democratic justice is best understood as criticism of the plebiscitary and advocacy participation
witnessed in the last generation. In addition, he highlights the importance of placing lay participants into
a dialogical context with others (164). However, I also think that these moves represent only a first necessary
step in the direction of astill missingmore robust and complete approach that connects a certain theory
of democracy (and I would also add a certain theory of justice) with criminal justice.
Of course, a properly established deliberative system would not ensure impartialityno legal system
could guarantee that. However, I submit, it would maximize the chances of deciding impartiality, which for
present purposes should be enough.
According to Feinberg, punishment is a conventional device for the expression of attitudes of resentment
and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing
authority himself or of those in whose name the punishment is inflicted (Feinberg 1965, 96). The
communicative approach, instead, sees the Criminal process as a two-way- process, where one part tries
to actively address the other, resorting to his reason, rather than his fear (see, for example, Duff 2001; Dzur
2012, 90).
123
and also more significant. We find interesting examples of its impact in Philip Pettit & John
Braithwaite works (i.e., Braithwaite and Pettit 1990, 2000), and also, and more clearly, in
communicative theories of punishment such as the one proposed by Antony Duff.6 Duffs
communicative approach, I believe, properly demonstrates how a theory of punishment
might take our democratic assumptions and commitments seriously.7 However, I should
also add, his theory has not yet gone all the way down (and up) examining the
implications of embracing such a theory of democracy.
Undeniably, both Duff and Dzur pay attention to some relevant consequences derived
from democratic theory regarding the criminal process and sentencing policies. In one way
or another, they both recognize that a serious commitment to democracy has strong
implications for criminal justice. Particularly so, given what a theory of democracy requires
in terms of civic participation, a reason-giving decision-making process and rational persuasion. However, it is equally or more important to pay attention to the implications of
democratic theory concerning the procedural rules for the creation of legal norms.
One interesting way to begin the study of these implications consists on focusing on
how a deliberative theory would respond to the challenges posed by both penal populism
and expert justice. As we shall see, by adopting a deliberative theory of democracy as a
background theory, we could not only strengthen our criticisms to both alternatives, but
also improve our chances of defining a proper substitute to them.
Communicative approaches propose to enter into a moral dialogue with the offender, in order to communicate to him the social condemnation for what he has done. What they emphasize is the importance of
expressing a social condemnation in the face of certain crimes, rather than deterring or incapacitating
offenders. In Duffs words, the Criminal Justice system should not seek the peoples obedience to its
demands, but their understanding and acceptance of what is required of them as citizens (Duff 2001, 80).
What we need is to strengthen his or her links to the rest of us, and convince him or her that there are
important reasons for him or her to obey the law (which presupposes that he or she has reasons to recognize
his or herself as an author of the law).
Given the rather natural or obvious connections that exist between a deliberative view of democracy
and a communicative understanding of punishment, it is surprising that authors such as Carlos Nino, an early
proponent of deliberative democracy, did not make or pursue that connection. Nino began and concluded his
academic career writing about criminal justice (Nino 1980, 1983, 1996b) and in between both extremes,
dedicated almost two decades to develop a powerful approach to deliberative democracy (Nino 1996a, b).
Pablo de Greiff rightly point out this missing connection, making reference to the fact that, in his latest
writings, Nino still founded his views on Criminal Justice from moral premises alone, leaving no clear role
to his views on democratic legitimacy (de Greiff 2002, 383).
123
of pluralism (157). These three criticisms, I believe, are fully consistent with the deliberative
approach. But the deliberative approach, at the same time, might enrich Dzur understanding
of the dimension and meaning of the problems he mentions. In effect, a deliberative
democracy is capable of providing a good explanation about why expert justice lessens rather
than increases our chances of deciding impartially; why our civic dignity is offended by an
elitist system of justice; and why the fact of pluralism requires criminal justice to be more
open to, rather than more distanced from, the people at large. Deliberative democracy helps
us, in sum, to better explain and challenge the biases that characterize our penal system.
Advocates of expert justice would dismiss all these claims. For them, the attraction of
expert justice resides precisely in its capacity to favour rationality and reasonableness within
a penal system that is always under the pressure of activists claiming for more and harsher
punishment. I think, however, that defenders of expert justice are in trouble: they do not take
the problems that deliberative democracy poses to their view seriously. One significant
example could illustrate the kinds of improper biases that deliberative democrats denounce
(biases that defenders of expert justice tend or need to neglect). I am thinking about the
example of most prisons, which everywhere exhibit a remarkably homogeneous composition,
in the context of profoundly heterogeneous societies, this is to say in the context of societies
characterized by the fact of pluralism. For deliberative democrats, that terrible result is not
surprising at all. In our societiesno matter whether penal policies are guided by penal
populism or expert justiceit has always been the case that certain offenses and groups
receive brutal punishments while other offenses and groups are kept almost untouched. For
deliberative democrats there are obvious connections between those extended, common,
always unacceptable outcomes, and the elitism that has always characterized our criminal
justice system. Criminal Law norms have always been in the hands of people who are
completely detached from (people who basically know nothing about) those who are usually
the most affected by these norms. The question, then, is whether we could reasonably have
expected something different from this elitist process. The answer is no: the biases that
characterize the entire system of criminal justice (biases that appear in the design of the penal
norms, their interpretation and their application) are no surprise, given the obvious fact that
we all have epistemic difficulties for properly recognizing and balancing the interests of those
we do not know an obvious fact that our decision-making processes do not take seriously
enough. This is precisely what deliberative democrats want to emphasize.
Taking into account these considerations, it is astounding to see advocates of expert justice
proposing remedies that can only radicalize the kinds of evils that we face. Take, for example,
what Philip Pettit has called the outrage dynamic that operates in sentencing policy, and his
response to it (Pettit 2002, 429. See also Zimring et al. 2001).9 The dynamic would take the
following form: first, the State exposes to society a certain evil; second, the exposure of this evil
leads, then, to popular outrage; and third, the popular outrage forces government to adopt new
(and normally repressive) measures (Pettit, 430). According to Pettit, this outrage dynamic
has becoming increasing influential within the criminal law, and actually explains many of its
recent developments. The dynamic would be fuelled by the sensational media, which [t]aping
into peoples voyeuristic and condemnatory appetites manages to attract the attention of the
people, and release their feelings of outrage and indignation.10 Facing this outrage, he concludes,
9
10
Let criminal evil be exposed in the media, especially with the vivid impressions that can be created in
contemporary television, and there will be no shortage of popular outrage (Pettit 2002, 434). The case of
Pettit is particularly surprising, given hisin generalrefined and enormously attractive approach to both
the issues of democracy and criminal justice.
123
11
In the conclusion of their book on punishment and democracy (aimed at analyzing the three strikes
legislation in California), Zimring et al. reach basically the same conclusion. For them, a reason to insulate
punishment from democratic political processes is to avoid placing a vulnerable area of governance in an
arena where it can be used as an opening wedge for broader attempts to undermine the credibility of
government (Zimring et al. 2001, 232).
12
For the same reasons, a deliberative democrat would not simply accept the creation of new countermajoritarian devices.
13
Unfortunately, even Dzur ends up opening more room than necessary to the technocratic view. Thus, at
the end of his book, Dzur admits the possibility that citizen participation in adjudication can lead counterproductively to greater punitiveness in the form of more criminalization, harsher penalties, penal
shaming, and degradation (163). Also, in his conclusion he claims: I have shown that it is not a dominance of experts but an equilibrium balancing formal procedure and technical expertise with informal
elements and lay knowledge that helps realize the goal of seeing, talking with, and treating the offender as a
particular individual and as a person worthy of respect (161). From a deliberative perspective, none of
these claims seem in principle reasonable.
14
This is basically the same conclusion reached by Dzur and Mirchandani 2007; and Johnstone 2000. For
them too, far from illustrating the need for buffers between the public and criminal justice policy making,
the penal populism evidenced in three strikes laws shows the need for an even deeper, albeit better informed
and more closely engaged, kind of public involvement (Dzur and Mirchandani 2007, 163).
123
15
16
For a discussion and examples of the concept of penal populism, see Roberts et al. (2002), Garland
(2002). Contrasts between elitists and populists may be found, for example, in Ryan 1999.
123
17
Dzur, for example, talks about the exclusionary tendencies that undermine the general legitimacy of
criminal courts, which he sees as a constant feature of modern societies (Dzur 2012, 92).
18
This consequence is related to a crucialMilleanassumption of the deliberative view, which is that
each person is the best judge of his or her own interests. This is what makes the participation of every person
in the deliberative process, necessary. As a result of this, one can conclude that the systematic absence of
part of the population from that process of creating and interpreting the law make it less likely to properly
balance the needs, interests and demands of all different individuals and groups. I refer to these as situations
of legal alienation (Gargarella 2012).
19
Duff has maintained, in this respect, that Sufficiently persistent, systematic, and unrecognized or
uncorrected failures to treat individuals or groups as members of the polity who share in its goods undermine
the claim that they are bound by its laws. (Duff 2001, 195196). Based on partially similar reasons, Jeffrie
Murphy maintained that modern societies largely lack the moral right to punish (Murphy 1973, 221) and
also that in the absence of a major social change institutions of punishment are to be resisted by all who
take human rights to be morally serious (ibid., 222).
20
In Duff words, [a]ny account of punishment which makes the justice of an offenders punishment
crucial to its justification must face the problem of whether we can justly punish offenders whose offences
are closely connected to serious social injustice which they have suffered (Duff 1998, 197).
123
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