The theory of rectification
The republican approach of penal law shares with utilitarianism its goal-oriented character, but the former has retributivist features as well. Can the "rectification" theory be positioned somewhere in between and what are the advantages?
Pettit and Braithwaite seek to find a theory that promotes personal dominion, a concept of republican liberty. Among some of the topical issues are what procedures should be followed in prosecution and adjudication and what sentences should be imposed for given offences. Any initiative taken in one part of the criminal system affects other parts of the system, thus creating "just deserts".
Retributivists have criticized that on the rectification approach, much like other goal-oriented or consequentialist theories like utilism/ utilitarianism, "A court is provided with a licence (to forward-looking and try to optimise results) to neglect the nature of the offence to which the sentence is meant to be a response."
Two notions of republican liberty
The 19th century notion of liberty was one of being free to enjoy a status constituted by protection and recognition of the law. This republican idea of liberty has evolved into thinking that freedom would be compromised by any interference, be it by protective law: as an isolated individual, one should enjoy perfect freedom [how realistic is this kind of thinking? In our contemporary world, few people live entirely separated from some sort of community].
Pettit and Braithwaite argue that the ideal of dominion, however, should be understood as "that non-interference should be enjoyed, not just a matter of contingent luck [ a kind of thinking reminiscent of Mill, M.Bouter], but in virtue of the protection of the law. Second, that it be salient to everyone in society, that the non-interference involved is of this resilient or secure character."
Important to note is that "Someone who enjoys non-interference, but does not do so resiliently, lives at the mercy of those who might choose to interfere." Pettit and Braithwaite could not be any more clear. Those who enjoy freedom from any interference by government, seem perfectly free, until others, similarly free from interference by (penal) laws, disrupt their liberty.
Crime as a denial of dominion
In republican theory, Pettit and Braithwaite describe crime as "denial of dominion". "Crime will always involve a negative challenge to the dominion status of the victim and to the dispensation of dominion as it exists in the community at large. Dominion is a good whose enjoyment by anyone is highly sensitive to evidence of its enjoyment by others." The authors point out that the denial of a person's dominion involves both the flouting (nullifying) of his status as a citizen protected and the destroyal of the victim's dominion.
The elements of rectification: recognition, recompense, reassuration
Thirst, the autors propose certain conditions in order to apply their theory of rectification:
"Given that crime represents a sort of damage to dominion, given that the damage is partly remediable and given that the task of the system is to promote dominion, the sentencing job of the courts is to try to rectify the damage caused by crime."
The elements of rectification are now presented: "In sentencing the convicted criminal, courts ought to seek recognition by the offender of the dominion status of the victim, recompense by the offender for the damage done and reassurance to community of a kind that may undo the negative impact of crime on their dominion."
Recognition by the offender of the dominion status of its victim alone is not enough: apologies for the act inflicted are just words. Although Pettit and Braithwaite discuss rectification in practice, it does not become clear which requirements have to be met. However, the authors do recognize that perfect rectification is not realistic.
Comparing the republican approach of rectification with utilitarianism (consequentialism)
To point out some of the traits of utilitarianism that I have noticed while reading Pettit and Braithwaite:
1. "For something to be criminalised, it must be the sort of challenge that
can be criminalised with profit: it must not be the sort of challenge
whose criminalisation is likely to do more harm than good."
This phrase obviously carries out a trait of utilitarianism: as one would have
noticed, it is one of Bentham's principles as presented in his book "The Principles of Penal Law" (Chapter "Cases where punishment is unjustified");
2. "Measures will vary with different sorts of offences, depending on the relationship between offender and victim and depending on the kind of offence. The offender may be a hardened character in whom it is difficult to render any act of apology or reconciliation, or any commitment not to offend again, credible."
To quite an extent, offences are to be categorized under retributivism. In applying the principle of perfect proportionality, talio, offences must be answered alike: "An eye for an eye". The measure thus depends on the sort of offence, but that is where the comparison between retributivism and rectification stops at this point. As circumstances are to be taken in consideration by the court, before imposing any penal measures, the republican/ rectification theory gets closer to utilitarianism.
3. "In any case, both capital punishment and imprisonment, by the evidence of criminology, are dubious means of securing the sort of reassurance sought. Because prisons embitter offenders and introduce them to criminal values and skills, they provide a false assurance."
As an example of the consequentialist approach, this statement could not be any more concise. In presenting this utilitarian argument against capital punishment and imprisonment, Pettit and Braithwaite do not seem to neglect the nature of any offence; rather, they question whether punishment, in general, will succesfully outweigh crimes committed. The advantage of the rectification model is that it pays attention to reality.
Similarities and differences between rectification approach and retributivism
Some authors have compared the republican theory with retributivism. Pettit and Braithwaite themselves list one similarity and three main differences between rectification and retributivism as follows:
One feature in common between republican theory and retributivism, is that they would each have the courts look backwards to the offence in determining the sentence; they would each reject the licence-to-optimise approach, where optimising is thought of as a forward-looking activity. This common point leaves room for three major differences:
1. Retributivist theory cannot go deep in motivating the sort of response which it would have the courts display. The crime cannot go unpunished and that is the end of the matter. In the republican approach, there is no quick end of matter: the promotion of dominion serves as an independent yardstick for the appropriateness of the court's response.
2. Retributivists look in general for some way of repaying the offence, seeking a penalty that is proportionate to it. Republican theorists look to what is required by way of rectifying the offence. The point is not to repay the offence. Whereas the retributivist concentrates on the offence in abstraction, the republican will look to the harm done to victims and communities and will consider how best that harm may be put right in the sentence imposed on the offender.
3. There is a great difference between the predisposition of the retributivist and the republican when it comes to the question what kind of penalty and what degree of penalty ought to be imposed. Retributivists generally look for hard treatment and seek proportionality between the offence and punishment in how hard this treatment is delivered. "Punishment consistis in hard treatment, in a manner that conveys disapproval of the actor for his conduct".
Republicans acknowledge that the matter of what rectification requires, is dependent of the case. They recognize that in many cases what is sufficient for rectification may fall well below what is required on the account of retributivist metric of punishment.
Conclusion
From this, I draw the conclusion that the republican approach can be positioned between the classic utilitarianism and retributivism approaches of penal law. It shares with utilism the features of consequentialism; to some extent, the republican approach is forward-looking, in that it takes the reality of capital punishment into consideration. Some of the arguments used are even derived from Bentham' utilitarian principles.
With retributivists, the republicans have in common the feature of a backward-looking approach, rejecting the licence-to-optimise approach that some authors have "convicted" Pettit and Braithwaite of.
The advantage of the republican model is that it seeks to provide the courts with a rather non-biased, independent yardstick in considering which punishment to impose on an offender; moreover, it does not hold one from being aware of all circumstances involved.
