Collective Agents and Communicative Theories of Punishment

Abstract

In recent years, a number of theorists of punishment have been attracted to accounts of punishment which stress the idea that punishment has an important expressive or communicative dimension. At the heart of the communicative view is the idea that it is part of the function of punishment to communicate a message either to the offender, or perhaps to the society at large, and that the justification of punishment depends in an important way upon these ends. Communicative theories that emphasize the idea of communication with an offender are particularly attractive. They are often thought to represent an advance on more traditional forms of retributivism, insofar as they give an account on which it is possible to see why giving people the treatment they deserve might be a positive good. They also seem preferable to many consequentialist views on which the beneficial effects of punishment appear to be secured in ways that involve impermissibly treating offenders as a means to an end. Communicative theories are not without critics. Those critics have, for the most part, focused on questions about whether the communicative theorist can really succeed in justifying inflicting the sorts of treatment that we typically associate with punishment on individual offenders. Although these criticisms are interesting, and ought to stimulate advocates of communicative theories to consider carefully how they formulate their views, I believe that most of them can be met by sophisticated formulations of the communicative view. The problem that I wish to raise is different: it concerns the scope of the communicative view. In particular, I shall be concerned with whether the communicative view can allow for the possibility of punishing all of the kinds of offenders that one might want to regard as potential subjects of punishment. In particular, I shall be concerned with the question of whether the communicative view can give a plausible account of the punishment of collective bodies. The kinds of collective bodies which I have in mind include, primarily, business corporations, which are treated as potential subjects of punishment under many jurisdictions; and secondarily, nations, which might plausibly be regarded as potential subjects of punishment under actual or possible systems of international law. I shall not defend in detail the claim that collective entities can, on occasion, be the appropriate subjects of punishment. For my purposes, it is enough to note that, in many jurisdictions, such entities are so treated. It is a point against the bs_bs_banner