Penance, Punishment and the Limits of Community

Abstract

The thought that religious ideas could have any place in a normative theory of criminal punishment will be anathema to many liberals. I argue, however, that we can understand criminal punishment as a species of secular penance, as part of a communicative enterprise in which the polity seeks to involve its citizens. After explaining what a penance amounts to in this context, I meet the liberal objection that punishment as thus conceived would be an oppressive and illegitimate intrusion into the realm of moral character and conscience which is not the state's, or the law's, business. Finally, I raise (without offering any confident answer to) the question of whether there are any kinds of crime that are so destructive of the very possibility of political community that punishment as communicative penance is no longer morally possible, and focus in particular on the version of this question that is raised by terrorist crimes.