Harvard University’s Tommie Shelby discusses injustice‚ punishment and condemnation at the Center′s February PEPA talk.

March 17, 2016

The Program in Ethics and Public Affairs welcomed Professor Tommie Shelby (Harvard) to discuss a chapter from his forthcoming book, .

By Amy Hondo, Ph.D. candidate
Program in Political Philosophy

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The Program in Ethics and Public Affairs welcomed Professor Tommie Shelby (Harvard) to discuss a chapter from his forthcoming book, Dark Ghettos: Injustice, Dissent, and Reform. The central question of the paper was, “When, if ever, is state punishment justified in a context where the state has failed to secure a reasonably just basic structure?”

This paper sets out to show that in an unjust society the state may justifiably (a) assert the right to punish certain crimes despite (b) lacking the authority to demand obedience from the people. The paper is, in part, a response to a problem that registers locally and globally. How do we remain committed to an ideal of state legitimacy while also recognizing the necessity and legitimacy of a criminal justice system in an age that is far from ideal?

The puzzle of justifiable punishment emerges from the argument that the legitimate authority of the state is predicated upon both the provision of a fair system of adjudication and the just distribution of basic social goods. Professor Shelby has in mind a case in which the state is able to maintain a fair system of adjudication but cannot ensure a just distribution of basic social goods. If the state does not ensure fair background conditions, then it seems that the state can no longer legitimately wield authority. Without legitimate authority the state cannot justifiably enforce the law. As such, it seems that criminals can never be justifiably punished within an illegitimate state. Because so few states ensure both juridical fairness and distributive justice, one might conclude that criminals are only very rarely punished on justifiable grounds. The idea that state legitimacy requires a just basic structure, then, comes into direct conflict with a strong intuition: some crimes are justifiably punished even in the context of great economic and social inequality. The state does not wrong anyone when it punishes these crimes. In fact, the illegitimate state might reinforce its illegitimacy if it fails to punish. 

Professor Shelby wants to preserve a conception of state legitimacy that requires both judicial impartiality and fairness (e.g., procedural justice) and distributive justice. To do so, he must explain how a partially illegitimate state might justifiably punish. Shelby’s argument builds upon the distinctions between two types of legitimacy and two purposes of punishment. When the state acts, he argues, its legitimacy might stem from “right-to-be-obeyed legitimacy” and/or “justifiable enforcement legitimacy.” In the first case, the state has the right to demand obedience (and coercively enforce this right) when it ensures a just basic structure and a fair criminal justice system. In the second case, the state’s right to enforce the law (e.g., traffic violations, theft, homicide) stems from the general principle that all people have a right prevent harm.

By disaggregating obedience-based and enforcement-based legitimacy, Professor Shelby argues that the state may not have the moral standing to demand obedience but, nevertheless, the state may retain the right to intervene in criminal behavior. However, does a right to prevent or intervene extend to the right to punish? To explain how this is possible, Shelby argues that two types of legitimacy justify two distinct purposes of punishment. In the case of obedience-based legitimacy, the purpose of punishment is to express (justifiable) condemnation for disobedience. In the case of enforcement-based legitimacy, the purpose of punishment is to “deter and contain” crime in order to “protect the vulnerable from unjustified harm.”

In the group discussion, attendees’ questions fell into roughly three categories. First, a few participants identified a tension between the justifiable content of punishment and the justifiability of enforcement-based legitimacy. For example, Professor Shelby seems to generally accept imprisonment as a justifiable form of punishment. The problem is that imprisonment is understood to be a punishment for a crime that has already happened. Thus, imprisonment may not prevent or contain harm. For example, it is not obvious that imprisonment will prevent a particular person from harming again. And, even if imprisonment is meant to prevent future harm, this means we imprison a person for a crime they have not yet committed. On the other hand, one attendee suggested that an amended form of Shelby’s argument might support an interesting approach to reforming the criminal justice system. Shelby’s argument defends the state’s right to enforce insofar as enforcement aims at preventing, minimizing, or intervening in the harm caused by criminal behavior. This entails that the state’s approach to enforcement is also limited: a state without obedience-based legitimacy may not punish victimless crimes nor pursue the many common forms of punishments (e.g., imprisonment, punitive damages, fines).

Second, some participants suggested that, while the paper is written in response to non-ideal realities, it does not address the central injustice that animates prominent examples within the public sphere. Professor Shelby’s paper concludes that the criminal justice system is justifiable even when the state cannot command obedience. However, in the public sphere the justice based complaint does not seem to be about the demand for obedience. It is a response to unjust enforcement. Critics argue that the state acts without right because it unjustly enacts its coercive power. Many are deeply troubled by evidence that members of marginalized social groups are disproportionately subject to the enforcement of law. For example, even if the court is impartial and procedurally just, some laws overwhelmingly affect social groups who struggle to access the resources needed to act lawfully. An anti-loitering law is especially difficult to obey when one is homeless. Charges of child neglect are more likely to be due to poverty than to abuse. Here, the state’s failure to establish distributive justice (e.g., the failure to remedy stark inequality) is directly related to citizen’s vulnerability to state punishment. In other cases, state representatives (namely, police) have practiced wide discretion in enforcement. Recent statistics show, for example, that while white citizens are more likely to use drugs illegally, black citizens are far more likely to be punished by the state for drug use. In a different example of selective non-enforcement, it was once (more) common for the state to allow violence within the domestic sphere. This suggests that representatives of the state selectively enforce entrance into the criminal justice system and, consequently, selective when to protect and prevent harm. These cases raise two objections against the enforcement legitimacy of the state. First, enforcement legitimacy is internally inconsistent. The state creates harmful conditions and then enforces the law on grounds that it is preventing harm. Second, the state cannot justifiably claim enforcement legitimacy when it cannot justify systematic non-enforcement.  

Finally, some attendees questioned the conceptual distinction between condemnation and punishment, arguing that the distinction cannot be maintained in practice. Professor Shelby argues that an unjust state may hold enforcement legitimacy while failing to meet the standard necessary to assert obedience-based legitimacy. The problem is that the state that (legitimately) punishes is also the same state that (illegitimately) condemns. Using civil disobedience as an example, one participant suggested that the state cannot, in practice, assert the right to punish without simultaneously enacting the right to condemn. The co-existence of condemnation and punishment seems to underwrite the power of civil disobedience. Engagement in civil disobedience usually requires a commitment to accept punishment for breaking the law. Consider the case of African American citizens who asked to be served at racially segregated lunch counters. The protestors claimed they were acting rightfully, and so ought not be condemned, even though they were breaking the law (and so would accept punishment). However, in punishing the protestors, the state necessarily condemned their actions. Because the unjust state rightfully punished, the public was able to recognize the state’s illegitimacy. Acts of civil disobedience are powerful and persuasive because the state punishes and so condemns protestors who are seen by the public to be acting rightfully (though unlawfully). The disobedient show their willingness to obey authority by accepting punishment. But the state, in punishing, shows that it lacks the moral standing to enforce the law. The disobedient are able to expose the authority as unjust because the right to demand obedience and the right to punish cannot be disentangled.