JUSTICE AND PUNISHMENT: THE RATIONALE OF COERCION by Matt Matravers. New York: Oxford University Press, 2000. 286 pp. Cloth $70.00. ISBN: 0-19-829573-1.

Reviewed by J. H. Bogart, Bendinger, Crockett, Peterson & Casey, P.C.

JUSTICE AND PUNISHMENT is really three different works--two good and the other, although not as good, worth reading all the same. The topic for Prof. Matravers' book is the relationship between theories of punishment and theories of justice. More specifically, the project is to answer the question "why, and by what right, do some people punish others?" (p. 1) That question, he does not, I think, answer or even fully understand. However, all the same, the book is interesting and, in a number of respects, successful.

The first third of the book (Chapters 1 though 3) consists of a survey of the livelier theories of punishment. The presentation is clear and fair. Indeed, the strength of the book is the clarity of the writing together with the fact that Matravers' presentation of theories is, all in all, quite fair. Matravers provides accurate (although necessarily general) discussions of the leading theories of punishment discussed in the Anglo-American world of philosophy of law. More than merely fair, there is real attention to the nuances of the theories (given the space constraints). In Chapter 1, Matravers offers a survey of consequentialist accounts of punishment beginning with Bentham running through to recent discussions by Pettit and Braithwaite. There are intelligent discussions of issues associated with shifts to second-order justifications of rules, and of the literature on first and second order preferences. (So there are discussions of work by Barry and Dworkin, e.g.) While there is nothing especially new here, it is all set out quite cogently

Chapter 2 and 3 are intended to address the various retributivist theories, which for Matravers includes education theories. The discussion here is more wide-ranging and detailed than the discussion of consequentialist accounts. In addition to Kant, Hegel, there are interesting analyses of work by Morris on through to Sher and Hampton and Duff, among a number of others. So, these chapters cover retributivism, fair play theories of punishment, punishment and guilt, and communicative or education theories.

The subject of the first three chapters is justification of punishment through law. At least, most of the theorists considered thought that was what they were attempting. The discussion proceeds on that basis, at least as far as the formation of criticisms. The next set of chapters takes up an apparently quite different set of topics. The explanation for the shift is the promise that a proper theory of justice should encompass both distributive and retributive justice. Matravers also suggests that the turn to theories of justice is grounded in a need for theories of punishment to be grounded in a broader theory of justice or morality. The idea is that the theory of justice is dependent on justification of the rules enforced by punishment.

Part Two of JUSTICE AND PUNISHMENT, chapters four through eight, is survey of some major theories of justice within the broad context of liberal political theory. In particular, there are discussions of Rawls, Barry, and Gauthier. Once again, although there are bound to be disagreements about whether a particular point or criticism has been expressed properly, I found the discussions measured and intelligent, and accurate.

The focus of the discussion in these chapters is not on theories of punishment or on theories the criminal law, or even the positions of the various political theorists on the relationship of justice and punishment under the criminal law. Instead, Matravers focuses on structural questions. For example, there is extended discussion of the issue of motivation for adherence to (or compliance with) justice-why adhere to a theory of justice or participate in a community bound by rules of justice-and on questions concerning the methodological structure of theories of justice-what sorts of presuppositions may properly underlie an adequate theory of justice.

Matravers basic point in these chapters is that justificatory accounts of theories of justice cannot succeed if they depend on substantive normative moral assumptions. The argument, in caricature, goes something like this. Constructivism is built on the idea that it should be possible to generate a theory of justice from a minimal set of normative commitments which do favor (structurally) any particular set of moral views. Although Rawls offers a theory, his is really a faux-constructivism because it in fact includes substantive moral commitments from the outset. It therefore is limited in its justificatory and motivational force. A more genuine constructivism is limited to normative commitments defined by rational self-interest alone. Such a theory will not run into the justificatory limits of a Rawlsian theory because the grounds for complying with principals of justice and consequent rules are not dependant on a commitment to any particular set of moral views.

Constructivism is a proper basis for a theory of punishment, then, because it offers a justification that is not tied to contentious moral views. It can be offered to all within a diverse culture, and will be rationally compelling. Furthermore, as presented by Matravers, a constructivist justification of punishment is expected to allow for a variety of justified social organizations and practices, i.e., multiple well justified societies.

I found these discussions interesting as political theory, but it remains quite unclear why or how they matter to justifying punishment. One supposes that the underlying idea is that justifying state coercion provides the justification, or perhaps the structure for the justification, of punishment by the state. However, that idea is not very persuasive. State coercion and punishment are not the same thing. Most of the ways the state secures compliance with principals of justice, or moral norms more generally, through means other than punishment. The criminal law is not the only or even primary means of state coercion, or even punishment, and punishment is not a prerogative peculiar to the state.

In the final chapter of the book, which runs to about thirty pages, Matravers offers his own account. Matravers believes that state punishment through the criminal law is justified on a combination of grounds. These consist of preventing free riding and moral censure of the wrongdoer in a context of respect for agency.

Frankly, this will not work. There just is no sense to the suggestion that a rapist is free riding, or that punishing battery has anything much to do with free riding. Free riding has some plausible connection to a limited range of property issues-frauds, for example-but in the face of violence it makes no sense. Even looking at law more widely, free riding is a very uncertain explanation. Disclosure requirements have a fairly indirect connection to free riding. If what Matravers is concerned about is coercion outside or in addition to law, things are little better.

The second half of Matravers offering is equally puzzling. It is hard to see what respect for agency has to do with putting people in four by six foot cages, or branding them, or most of the other things done to punish crime. There are a host of institutional contexts in which talk of censure and agency makes sense, e.g., education. However, that leaves us a very long way from state coercion. Furthermore, I do not think respect for agency is something derivable from the limited stock provided by Matravers version of constructivism. Agency, in the sense used in this section of the book is a substantive moral commitment of the kind earlier derided.

One thing that is not explicitly addressed in the book, which should have been, is the expected scope of the theories being discussed. The theories of punishment anvassed are mostly offered as theories attempting to justify punishment under the criminal law as imposed by a state. Although the theories are supposed to be theories of particular forms of punishment, no attention is paid to what that narrowed scope means. To put the point in another way, there are a host of practices that constitute punishment, and only a portion are plausibly linked to state action. When one asks why some people are justified in punishing others, there is no reason to think the answer has to be concerned especially with state action. Churches punish, parents punish, friends and employers punish. As a practical matter, punishment is not limited to the unjust or the immoral. Furthermore, the notion that punishment is preeminently action of the state is plainly wrong. Yet, the only real consideration Matravers gives is in the context of justifying punishment under the criminal law, which is not even the only means of legal punishment.

Although I think the first 237 pages are interesting and clear, and certainly usable for an advanced undergraduate seminar, the final offering is unconvincing. The fundamental problem is that Matravers has not paid sufficient attention to the nature of punishment, to what it is he is purporting to offer a justification. This is reflected in the curious indecision about his subject: sometimes Matravers is writing about retributive justice, sometimes about punishment, sometimes about criminal law, sometimes about stability of a community under principals of justice. These are all quite different topics. It is possible that there is a unifying theory for them, but it is not found here.

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Copyright 2001 by the author, J. H. Bogart.