Punishment and Personal Responsibility

59
and uphold rules that are legitimate, binding to all, and perceived as
worthwhile by all. I shall predominantly assume that such states are democratic
in character, for the assumption that some rules will be seen as
binding for all works best if all, as citizens, may be construed as colegislators
of the rules. 66 And some of my more specific arguments – that
the model of rule breaking inherent in retributivism is more consistent
with democratic principles than the rival theories’ models, for instance –
only makes sense if democratic principles are taken to be valuable. 67
Other than that, (Q) is not restricted to any particular state. Some of my
empirical examples will be taken from Swedish penal policy, and much
of the theoretical views from Anglo-American philosophy, but the argument
is intended to generalize.
* * *
Society has worthwhile rules. To break such rules is prima facie morally
wrong. Yet for various reasons rules will, even if all can agree that they
are worthwhile, be broken. The state is entrusted with the task of acting
against such rule breaking. A penal regime is the forms and nature of the
state’s responses to rule breaking.
According to which principle or theory should the penal regime be
designed? Three theories of punishment (which in effect also represent
three different penal regimes) will be entertained in this book: deterrentism,
rehabilitationalism and retributivism. The next chapter is devoted
to presenting these theories in detail – in particular retributivism, the
elusive and often misunderstood theory defended in this book.
66 A fundamental tenet of democracy is that one should be given the opportunity
to affect the rules which one is expected to follow; see e.g. Dahl 1989. Note that
rules which in themselves are legitimate may not be binding if the state enforcing
the rules is inherently illegitimate. Take rules against theft in a dictatorship as an
example. Though a rule prohibiting theft in general is worthwhile, and one all
can see as binding, it may still be that it is illegitimate because the dictatorial
state is illegitimate in turn. (In particular, one can question whether such a state
has a right to punish). However, there is nothing in principle that rules out that
legitimate dictatorships, if there can be such things, may have the right to punish
violations of worthwhile rules. Furthermore, it may be that even an illegitimate
state retains some right to punish. I will return to these questions in chapter 10.
67 I make this argument in chapters 6 and 8.