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The Apology Ritual: A Philosophical Theory of Punishment
Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship (such as friendship or collegiality or citizenship) that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes are the necessary expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice.
- GenresPhilosophyNonfiction
222 pages, Hardcover
First published August 21, 2008
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February 27, 2023
In his work The Apology Ritual, Christopher Bennett takes as starting point in the defence of his theory of punishment the importance of what he terms 'qualified moral agents' to see as valuable the act of making an apology. Otherwise, the initial informal reparative practice attempted between victim and offender. Communicative theories of punishment (CTP) highlight the importance of such rational expressive censure of crime by stakeholders for the justification of retributive punishment. They diverge on questions concerning both the extent to which this reparative process should be held exclusively by informal or non-state related actors, and the degree of rational understanding or repentance morally required by the criminal for punishment to be justified. This review will demonstrate that by recognizing the state as a necessary stakeholder in the criminal process, Bennett develops a distinctively formal communicative theory of punishment where state sanctioned proportionate punitive punishment is symbolically adequate for communicative success. Its aim is to evaluate the explicitly expressivist equivalency Bennett poses between retributive hard punishment and reparative communicative practice and analyse his divergence in this fact from other CTPs.
Punishment, if it is to be meaningful and not lend itself to brute injustice, must be able to be rationally justified. CTPs make an even stronger demand; such justification must be rationally understood through expressive censure by the stakeholders of a crime, including the criminal. This section demonstrates why for these reasons Bennett and other communicative theorists have chosen to justify punishment on retributivist as opposed to consequentialist grounds, and the consequences of this for the moral status of the criminal.
Bennett adopts retributivist justifications due to their satisfaction of the 'culpability requirement' . A designation of culpability recognizes the blameful censure of the criminal as something good in itself. This is contrasted with consequentialist justifications which conceive of the criminal’s punishment as a means to further good ends, these have as their procedural justifications questions of: deterrence, incapacitation, and rehabilitation. Due to its explicit focus on outcomes the consequentialist approach is useful for criticism of the excesses of our current penal system. However, due to the rejection of the culpability requirement it allows its own excesses when pragmatically justifying punishment; at its most radical justifying the punishment of the innocent. Concerning CTPs, the instrumental integration of the culpability requirement as attempted by for example Hart would still make the successful communication criteria contingent on its positive effect on say recidivism rates. Psychological research done on the lived experience of criminals sitting long-term sentences for reasons of deterrence and incapacitation shows that moral communication in the current penal system has negligent effect on levels of reflection or repentance, this makes consequentialism antithetical to CTP approaches.
Retributivism makes up for this shortcoming by taking as starting point the status of an offender as a moral agent, the nature of a crime is consequently conceived of as a betrayal of moral responsibility to the community. In claiming that the criminal has a 'right to be punished', Bennett argues that his status as a fundamentally responsible agent both justifies his punishment and is maintained throughout the process of punishment. Retributivist theories thus thus criminals as an end to themselves. This is essential for a liberal framework as it preserves the Kantian notion of the offender’s dignity which concerns his righteous status as a person deserving of respect. And importantly for the CTP approach, this entails that after the offence the offender retains his status as reasonable and is thus open to understanding of rationally argumented moral indictment, and capable of the demonstration of repentance through apology. The CTPs symbolic defence of the social order has as function to enforce what Duff terms societies "shared commitment to certain defining values" , this explains why for Bennett's CTP the state is a necessary stakeholder in the criminal process. The criminals reasoned maxim of illegal action undertaken against a victim is not merely in conflict with the victim’s particular interest, but is in conflict with too with their publicly endowed rights and thus deserving of public condemnation .
This leaves us with the idea that according to Bennett's retributivist CTP the deserved censure of a crime and the apology of the criminal must not only be symbolically adequate to the immediate parties involved, but also to society at large. Secondly, the justification for the punishment that is communicated is predicated on the fact that there exists a shared conception of justice, and thus that the criminal is not being treated cruelly but is given his just desert. It would however be wrong to de-facto vindicate a certain punitive practice on the basis of its justification for the symbolic affirmation of the social order. Although justifying the process of punishment itself, retributivist theories are not prescriptive as to what form this punishment should take. In other words, how does Bennett make the move from his why (theoretical) to a proportional what (pragmatic) or just desert, without falling prey to consequentialist accusations of coercively imposed needless suffering?
Bennett makes a distinction between 'qualified' and 'non-qualified' moral agents , this distinction proves essential to his CTP. Strawson's 'luck argument' does well to point out intuitive cases where an individual can be clearly identified as a 'non-qualified' moral agent. Such cases are for example people with severe mental health problems, or fits of disillusion wherein they commit a crime. Here we can understand that the individual has no autonomous control over the principles under which they act in a social situation, their behaviour is causally affected and not legislated through reason. Thus, their crime is not a betrayal of social responsibility which comes with full self-ownership, rather it is an act of social incompetence. It is this competence criteria which for Bennett distinguishes the qualified agent. Competence lends to an agent a status of respect because it is indicative of their autonomous 'mastery of some valuable activity' , in this case the intrinsic value of our social relations. In recognition of the qualified moral agent being able to understand how to discharge his societal duties, we can hold him accountable when he chooses to suspend them during criminal activity.
Bennett utilizes this distinction to argue that it is only through retributive punitive punishment that an individual’s status as a qualified moral agent is respected. The argument he makes can be seen as a direct response to Feinberg's criticisms of the expressive functions that punitive CTPs take on. Feinberg argues that by striking a false equivalency between the punitive and the symbolic, one moves from valuable cross-party understanding to mere functional public censure. Consider however the alternative form of communication; this would be a CTP whereby what is communicated is exclusively moral criticism that is non-retributive but makes a reparative attempt at what Bennett terms 'rehabilitation or moral re-education' . What such a theory fails to recognize is that in the case of the qualified agent the problem was not one of incompetence, which would indeed be rectified through moral criticism, but one of negligence. This is not to say that expressive moral criticism (such as the reading of the reasons for a penal sentence) plays no role in a reparative CTP, rather, moral criticism that isn’t followed by a collective suspension of goodwill through punitive punishment is not symbolically adequate in expressing the failure of the criminal's societal role and thus fails as an effective CTP.
An important aspect of Bennett's theory is that it in this manner satisfies the aims of CTPs whilst maximally respecting the autonomy of the criminal. This is because in treating the criminal as a qualified agent, expressive communication of condemnation in the apology ritual does not seek coercively induce repentance. Instead, it recognizes the qualified agent’s capacity for atonement which arises from the aforementioned competence of the qualified agent to understand his duties and his regretful failure to live up to them. Bennett claims atonement, in recognition of the new relation to the community, ideally involves the criminals repentant 'withdrawal of recognition from oneself' . This withdrawal is symmetrical to the state's corresponding proportionate, and temporary, withdrawal of goodwill towards the criminal through punitive punishment. However, crucial to Bennett's formal CTP, and as will be evaluated, the state’s withdrawal of goodwill is not at all contingent on if atonement is what the criminal seeks.
The 'apology ritual' is summed up by Bennett as: the states expressive function, through the punitive use of the penal system, to communicate a collective condemnation of public wrongs. The name that Bennett has given his CTP can be understood as reflective of the theoretical negotiations between two possible aspects of punishment that must coexist to make his theory both coherent and practically applicable. This section demonstrates how this conflict arises due to the privileging of the formal over the informal aspects of a CTP, thus only allowing for a limited devolution of justice to individual stakeholders. The advantages and disadvantages of this approach will first be developed to understand why it was opted for.
Why ritualism? This term has the connotation of an act with symbolism abound but where participants merely go through motions, perhaps insincerely; it is an intrinsically formal or 'stately' practice. CTP often seek to avoid this and make an appeal to the innate moral nature of offenders, equating ritualism with the Kafkaesque bureaucracy of the court system. One of the appeals of the informal, or what is termed the 'laissez-faire' (extra-state), approach is that it caters to the immediate demands of the victim. De Beauvoir in her essay An Eye for An Eye, for example, writes movingly of a victim’s justified punitive demand for a reversal of roles to redress an existential imbalance created by the offender’s assault on their freedom; this despite knowing that a true reversal or vengeance can never be achieved. That essay was written in response to demands for the death penalty to be utilized against Nazi sympathizers after WWII, demonstrating the positive (though dangerous) tendency of informal processes of punishment to invite community involvement through public outrage.
What is involved in an 'apology' then is stakeholders’ appropriate showing of emotion, however, as has been shown, the state itself is a necessary stakeholder and as such this becomes difficult. If the state (its functionaries) were to express condemnation emotively through anger and outrage, this would drive it to use its coercive means to take symbolically appropriate actions that are violent and aggressive. Besides the historically understood injustice of this, although such practice might communicate condemnation in appropriate symbols, it ends up communicating the wrong message. Immediate emotive outbursts only seek to communicate the new relation of distance that must exist between society and the offender; it forcefully expresses, in attempt to effectively communicate, that goodwill has been suspended. What this leaves out is the mention that this suspension of goodwill is temporary, or as Bennett puts it, that we are truly only 'partially suspending the offender's rights'. The state’s role in doing this through the provision of a sentence is necessitated. We need only imagine a scenario where it would be up a person who has just lost complete mobility due to a drunk driver to rationally communicate that he will remain angry for exactly 5 years.
Finally, due to its ritualistic aspect, Bennett's formal CTP is best placed to deal with what is popularly seen as the greatest challenge to communicative procedures to justify punishment; that of the unrepentant criminal. Bennetts response to this is the most radical of his theory, he claims that if a sentence is just, it is exactly what a 'qualified moral agent' would himself find necessary to make amends with the political community. The unrepentant criminal is not such a qualified agent; his refusal to cooperate on the terms of what Bennett claims finds its very normative foundation in its nature as cooperative endeavour, that of society, has no impact on the symbolic adequacy of state punishment. This is an extreme case where assured proportionality, expressively communicated, is prioritized over more informal attempts at effective communication. Bennett's theory can be vindicated here in being pragmatically coherent, but this may raise issues for his CTP generally.
The difference between the justification of hard treatment as punishment between Duff and Bennett is slight but crucial for the question of if a CTP can integrate expressivist aspects whilst remaining coherent to its aims. Duff himself defines communicative punishment as that which involves both reciprocal and rational engagement on the part of the state, he defines expressivist punishment as that which may be rational but treats the offender passively or does not seek to achieve understanding. 'Understanding' properly understood here means that the justification of punishment comes from the attempt to induce repentance in the criminal; Duff also claims state sanctioned hard punishment is justified to achieve this aim. This is the point where Bennett's CTP diverges from Duffs. To use the state to coercively induce repentance would be for Bennett just as intrusive upon the criminal's freedom as the consequentialists suggestion to use punishment as mere means. This is because what is sought is the paradoxical act of coercively inducing (albeit through argument) what should be a free act of repentance of a qualified moral agent; if such repentance is to be at all meaningful. On Bennetts account what is communicated, albeit expressively, is merely the new standing between the state and the criminal. Importantly this does often have as consequence the repentance of the criminal, but contra stronger retributivist accounts, the induction of repentance is not what ultimately justifies punishment.
Bennetts CTP can finally be understood as coherent, despite its formal aspects, due to its justification of punishment through the symbolic communication of recognition as opposed to understanding. Recognition has a one sided and thus expressivist aspect because it is reflective of what Rawls terms an act of 'ideal public reason', or that which communicates the reasonably held political conception of justice. This is communication nonetheless, and albeit formal, it consequently maintains respect for the formal autonomy of the criminal it condemns.
Punishment, if it is to be meaningful and not lend itself to brute injustice, must be able to be rationally justified. CTPs make an even stronger demand; such justification must be rationally understood through expressive censure by the stakeholders of a crime, including the criminal. This section demonstrates why for these reasons Bennett and other communicative theorists have chosen to justify punishment on retributivist as opposed to consequentialist grounds, and the consequences of this for the moral status of the criminal.
Bennett adopts retributivist justifications due to their satisfaction of the 'culpability requirement' . A designation of culpability recognizes the blameful censure of the criminal as something good in itself. This is contrasted with consequentialist justifications which conceive of the criminal’s punishment as a means to further good ends, these have as their procedural justifications questions of: deterrence, incapacitation, and rehabilitation. Due to its explicit focus on outcomes the consequentialist approach is useful for criticism of the excesses of our current penal system. However, due to the rejection of the culpability requirement it allows its own excesses when pragmatically justifying punishment; at its most radical justifying the punishment of the innocent. Concerning CTPs, the instrumental integration of the culpability requirement as attempted by for example Hart would still make the successful communication criteria contingent on its positive effect on say recidivism rates. Psychological research done on the lived experience of criminals sitting long-term sentences for reasons of deterrence and incapacitation shows that moral communication in the current penal system has negligent effect on levels of reflection or repentance, this makes consequentialism antithetical to CTP approaches.
Retributivism makes up for this shortcoming by taking as starting point the status of an offender as a moral agent, the nature of a crime is consequently conceived of as a betrayal of moral responsibility to the community. In claiming that the criminal has a 'right to be punished', Bennett argues that his status as a fundamentally responsible agent both justifies his punishment and is maintained throughout the process of punishment. Retributivist theories thus thus criminals as an end to themselves. This is essential for a liberal framework as it preserves the Kantian notion of the offender’s dignity which concerns his righteous status as a person deserving of respect. And importantly for the CTP approach, this entails that after the offence the offender retains his status as reasonable and is thus open to understanding of rationally argumented moral indictment, and capable of the demonstration of repentance through apology. The CTPs symbolic defence of the social order has as function to enforce what Duff terms societies "shared commitment to certain defining values" , this explains why for Bennett's CTP the state is a necessary stakeholder in the criminal process. The criminals reasoned maxim of illegal action undertaken against a victim is not merely in conflict with the victim’s particular interest, but is in conflict with too with their publicly endowed rights and thus deserving of public condemnation .
This leaves us with the idea that according to Bennett's retributivist CTP the deserved censure of a crime and the apology of the criminal must not only be symbolically adequate to the immediate parties involved, but also to society at large. Secondly, the justification for the punishment that is communicated is predicated on the fact that there exists a shared conception of justice, and thus that the criminal is not being treated cruelly but is given his just desert. It would however be wrong to de-facto vindicate a certain punitive practice on the basis of its justification for the symbolic affirmation of the social order. Although justifying the process of punishment itself, retributivist theories are not prescriptive as to what form this punishment should take. In other words, how does Bennett make the move from his why (theoretical) to a proportional what (pragmatic) or just desert, without falling prey to consequentialist accusations of coercively imposed needless suffering?
Bennett makes a distinction between 'qualified' and 'non-qualified' moral agents , this distinction proves essential to his CTP. Strawson's 'luck argument' does well to point out intuitive cases where an individual can be clearly identified as a 'non-qualified' moral agent. Such cases are for example people with severe mental health problems, or fits of disillusion wherein they commit a crime. Here we can understand that the individual has no autonomous control over the principles under which they act in a social situation, their behaviour is causally affected and not legislated through reason. Thus, their crime is not a betrayal of social responsibility which comes with full self-ownership, rather it is an act of social incompetence. It is this competence criteria which for Bennett distinguishes the qualified agent. Competence lends to an agent a status of respect because it is indicative of their autonomous 'mastery of some valuable activity' , in this case the intrinsic value of our social relations. In recognition of the qualified moral agent being able to understand how to discharge his societal duties, we can hold him accountable when he chooses to suspend them during criminal activity.
Bennett utilizes this distinction to argue that it is only through retributive punitive punishment that an individual’s status as a qualified moral agent is respected. The argument he makes can be seen as a direct response to Feinberg's criticisms of the expressive functions that punitive CTPs take on. Feinberg argues that by striking a false equivalency between the punitive and the symbolic, one moves from valuable cross-party understanding to mere functional public censure. Consider however the alternative form of communication; this would be a CTP whereby what is communicated is exclusively moral criticism that is non-retributive but makes a reparative attempt at what Bennett terms 'rehabilitation or moral re-education' . What such a theory fails to recognize is that in the case of the qualified agent the problem was not one of incompetence, which would indeed be rectified through moral criticism, but one of negligence. This is not to say that expressive moral criticism (such as the reading of the reasons for a penal sentence) plays no role in a reparative CTP, rather, moral criticism that isn’t followed by a collective suspension of goodwill through punitive punishment is not symbolically adequate in expressing the failure of the criminal's societal role and thus fails as an effective CTP.
An important aspect of Bennett's theory is that it in this manner satisfies the aims of CTPs whilst maximally respecting the autonomy of the criminal. This is because in treating the criminal as a qualified agent, expressive communication of condemnation in the apology ritual does not seek coercively induce repentance. Instead, it recognizes the qualified agent’s capacity for atonement which arises from the aforementioned competence of the qualified agent to understand his duties and his regretful failure to live up to them. Bennett claims atonement, in recognition of the new relation to the community, ideally involves the criminals repentant 'withdrawal of recognition from oneself' . This withdrawal is symmetrical to the state's corresponding proportionate, and temporary, withdrawal of goodwill towards the criminal through punitive punishment. However, crucial to Bennett's formal CTP, and as will be evaluated, the state’s withdrawal of goodwill is not at all contingent on if atonement is what the criminal seeks.
The 'apology ritual' is summed up by Bennett as: the states expressive function, through the punitive use of the penal system, to communicate a collective condemnation of public wrongs. The name that Bennett has given his CTP can be understood as reflective of the theoretical negotiations between two possible aspects of punishment that must coexist to make his theory both coherent and practically applicable. This section demonstrates how this conflict arises due to the privileging of the formal over the informal aspects of a CTP, thus only allowing for a limited devolution of justice to individual stakeholders. The advantages and disadvantages of this approach will first be developed to understand why it was opted for.
Why ritualism? This term has the connotation of an act with symbolism abound but where participants merely go through motions, perhaps insincerely; it is an intrinsically formal or 'stately' practice. CTP often seek to avoid this and make an appeal to the innate moral nature of offenders, equating ritualism with the Kafkaesque bureaucracy of the court system. One of the appeals of the informal, or what is termed the 'laissez-faire' (extra-state), approach is that it caters to the immediate demands of the victim. De Beauvoir in her essay An Eye for An Eye, for example, writes movingly of a victim’s justified punitive demand for a reversal of roles to redress an existential imbalance created by the offender’s assault on their freedom; this despite knowing that a true reversal or vengeance can never be achieved. That essay was written in response to demands for the death penalty to be utilized against Nazi sympathizers after WWII, demonstrating the positive (though dangerous) tendency of informal processes of punishment to invite community involvement through public outrage.
What is involved in an 'apology' then is stakeholders’ appropriate showing of emotion, however, as has been shown, the state itself is a necessary stakeholder and as such this becomes difficult. If the state (its functionaries) were to express condemnation emotively through anger and outrage, this would drive it to use its coercive means to take symbolically appropriate actions that are violent and aggressive. Besides the historically understood injustice of this, although such practice might communicate condemnation in appropriate symbols, it ends up communicating the wrong message. Immediate emotive outbursts only seek to communicate the new relation of distance that must exist between society and the offender; it forcefully expresses, in attempt to effectively communicate, that goodwill has been suspended. What this leaves out is the mention that this suspension of goodwill is temporary, or as Bennett puts it, that we are truly only 'partially suspending the offender's rights'. The state’s role in doing this through the provision of a sentence is necessitated. We need only imagine a scenario where it would be up a person who has just lost complete mobility due to a drunk driver to rationally communicate that he will remain angry for exactly 5 years.
Finally, due to its ritualistic aspect, Bennett's formal CTP is best placed to deal with what is popularly seen as the greatest challenge to communicative procedures to justify punishment; that of the unrepentant criminal. Bennetts response to this is the most radical of his theory, he claims that if a sentence is just, it is exactly what a 'qualified moral agent' would himself find necessary to make amends with the political community. The unrepentant criminal is not such a qualified agent; his refusal to cooperate on the terms of what Bennett claims finds its very normative foundation in its nature as cooperative endeavour, that of society, has no impact on the symbolic adequacy of state punishment. This is an extreme case where assured proportionality, expressively communicated, is prioritized over more informal attempts at effective communication. Bennett's theory can be vindicated here in being pragmatically coherent, but this may raise issues for his CTP generally.
The difference between the justification of hard treatment as punishment between Duff and Bennett is slight but crucial for the question of if a CTP can integrate expressivist aspects whilst remaining coherent to its aims. Duff himself defines communicative punishment as that which involves both reciprocal and rational engagement on the part of the state, he defines expressivist punishment as that which may be rational but treats the offender passively or does not seek to achieve understanding. 'Understanding' properly understood here means that the justification of punishment comes from the attempt to induce repentance in the criminal; Duff also claims state sanctioned hard punishment is justified to achieve this aim. This is the point where Bennett's CTP diverges from Duffs. To use the state to coercively induce repentance would be for Bennett just as intrusive upon the criminal's freedom as the consequentialists suggestion to use punishment as mere means. This is because what is sought is the paradoxical act of coercively inducing (albeit through argument) what should be a free act of repentance of a qualified moral agent; if such repentance is to be at all meaningful. On Bennetts account what is communicated, albeit expressively, is merely the new standing between the state and the criminal. Importantly this does often have as consequence the repentance of the criminal, but contra stronger retributivist accounts, the induction of repentance is not what ultimately justifies punishment.
Bennetts CTP can finally be understood as coherent, despite its formal aspects, due to its justification of punishment through the symbolic communication of recognition as opposed to understanding. Recognition has a one sided and thus expressivist aspect because it is reflective of what Rawls terms an act of 'ideal public reason', or that which communicates the reasonably held political conception of justice. This is communication nonetheless, and albeit formal, it consequently maintains respect for the formal autonomy of the criminal it condemns.
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