DI ROBIN ANTONY DUFF
ABSTRACT – There are many dimensions to “the return of cruelty” in criminal law. In this paper I will focus on just one: the failure to recognise offenders as our fellows. In fact, it is easier to see those who commit crimes not as fellows, but as other. We might see them as enemies against whom “we”, the law-abiding, must protect ourselves; or as evildoers upon whom “we” must inflict the suffering that they deserve as retribution; or as dangerous beings whom “we” must incapacitate or deter, rather than as rational, responsible agents with whom we must engage. These kinds of perspective enable and encourage cruelly oppressive kinds of treatment. But, I argue, we can envisage an inclusionary response that still treats offenders as fellow citizens, and that preserves their “equal social dignity”. Criminal law could itself ideally be part of such an inclusionary response.
KEYWORDS – Philosophy of Punishment – Criminal trial – Communicative theory – Justice – Political Community