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Punishment and the moral community

November 7, 2010

The news that the UK government has accepted that it will have to give the right to vote to prisoners (or at least will not be able to enforce a blanket ban) has reminded me of a thought that I had a while ago. I didn’t do anything with that thought since it touches on subjects about which I know very little. Not that I know any more about them now, so I’m afraid that you will just have to bear with me. Disclaimer over; back to the point in hand.

The government has been forced to act by a ruling by the European Court of Human Rights. The idea behind the ruling is that an individual who is sent to prison cannot simply be assumed to forfeit their right to participation in the political process, although it leaves open the possibility of particular classes of prisoner forfeiting that right or the question of forfeiture being decided as part of the sentencing process. What I am interested in is the general principle that supports this view, which seems to be something like this: the existence of a certain kind of community brings with it certain normative principles, principles that say how things should be. Some of these apply to the actions of individuals, regulating their behaviour, and some to actions that more properly are assigned to the community (understood in some sense) itself.

These two types of principle are tied together, for example there will be principles that say how the community may treat individual members who contravene the rules that apply to them. It would seem that it is a principle of this kind that the blanket ban on prisoner voting is supposed to violate. The point in which I am interested concerns the content of this principle, and what it might be thought to be. The type of community that is relevant here is the political community, and the removal of the right to vote is in some way an exclusion from participation in that community. So my thought is this: could there be a principle which prevents a community from excluding any of its members from participation in that community, even in punishment for contravening its (legitimate) rules?

Clearly such a principle would not apply to every community – some, such as business organisations, are by their nature necessarily exclusionary, in the sense that they can choose who to exclude. It is also less clear, however, that business organisations are the kind of community that, of themselves, generate normative principles. This is not the kind of question I want to deal with here, however. I am rather interested in two kinds of community: the political community and the moral community more generally.  We might think that in determining the kinds of principles generated by these communities we must assume that individuals are incapable of simply leaving if they do not find their rules satisfactory. Some assumption such as this at least seems to be behind John Rawls’ theory of social justice, for example.

If this were the case, then might this assumption not also extend to the contents of the principles which govern those communities? In other words, no principle could be legitimate if it allowed a member to be expelled from the community? I’m not sure that this conclusion necessarily follows, but what might it imply if it did? Firstly, it might prohibit the removal of the vote as punishment in a political community. It would also, presumably, prohibit deportation at least of a citizen of that community (if such punishment were still practical in today’s world). Thinking of a moral community more broadly, what might the implications be? Well, the most extreme way in which a person is expelled from a community is through the termination of their life. In this way, a principle that prohibited expulsion would speak against any form of capital punishment. This is the thought I started out with a while ago.

Of course, many other considerations could be relevant in all these cases and there are certainly many other considerations which weigh on the legitimacy or illegitimacy of punishments – to do with retribution, deterrence or rehabilitation, for example. Nonetheless, a principle that prohibited expulsion could provide a constraint that any final conclusion must abide by in order to be legitimate. My knowledge of the literature on punishment is virtually nonexistent, which is why I was wary of discussing this subject; it would be interesting to know if this is an idea that has been discussed (and if not, if there is an obvious reason why not!!).

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