In this post, Cristián Irarrázaval Zaldívar and Ivó Coca-Vila discuss their recent article in Journal of Applied Philosophy on how to legitimate punishment in the context of varying forms of citizenship.
Ask yourself why an English court can legitimately punish an Indonesian who committed an offence in Japan but now lives in the UK, or a Spanish judge can punish a young Senegalese criminal offender who, after months crossing through Africa, enters Spain illegally and subsists in absolute hardship hidden from state authorities. Probably your answer would be something along the lines that punishment is necessary to prevent harm. Indeed, that is how most criminal law scholars respond. However, among contemporary authors, it is increasingly common to assert that the criminal law of a given state should be applicable only to those who, at the time of the commission of the offence, had some kind of political bond with it, namely, to those who belonged to the polity as “citizens”. In our recent article, we explain why the advantages of this approach outweigh the downsides, at least as long as we take seriously the fact that citizenship is not all-or-nothing, but comes in degrees.
The “citizen criminal law” dilemma
The major strength of this “citizen criminal law” approach is that it rightly places the individual who must endure punishment at the centre of the discussion about its legitimacy. “If you are going to send me to prison, explain to me why I have to bear your punishment!” This not only seems to be the correct starting point for any attempt at theoretical justification, but also provides a limiting force to the scope of the criminal law that is lacking in those theories that justify punishment mainly on the rationale of prevention. When it comes to prevention, punishment is never harsh enough! Thus, citizen criminal law highlights the huge problems of legitimacy when punishing people living in social exclusion, foreigners who commit crimes against nationals abroad, minors who are not allowed to vote, or disenfranchised criminal offenders.
However, the idea of a citizen criminal law comes up against a difficult problem to solve. Advocates of this conception usually operate with a binary understanding of citizenship, which apparently allows a clear line to be drawn between full citizens (who can be punished legitimately) and outsiders (against whom the state could not impose a punishment, at most perhaps a coercive preventive measure). The problem with this is that binary classification between insiders and outsiders is implausible. If citizenship as a right-based status is composed of multiple elements (i.e., different types of rights, including civil, political, social, and nationality rights) that a state guarantees to an individual, then most persons in contemporary societies will be neither full insiders, nor complete outsiders, but rather semi-citizens. By semi-citizen we mean someone who enjoys some – but not all – of the rights associated with citizenship. This term obviously applies in the absence of legal citizenship status, as in the case of the permanent resident or the unauthorized immigrant. Yet it also refers to someone whose legal status does not translate into the effective guarantee of important rights (think of the case of a Brazilian national living in a dangerous favela).
Therefore, the binary understanding of citizenship confronts the proponents of citizen criminal law with a dilemma. They can resort to a strict notion of citizenship and accept that a large number of semi-citizens who commit crimes cannot be punished, meaning that a significant proportion of what we understand as criminal law would be illegitimate. Or, more commonly, they can undertake ad hoc adaptations of the notion of citizenship that lead to more acceptable consequences, in that they treat different types of semi-citizens (including unauthorized immigrants or the socially marginalized) as if they were full citizens. Thus, for example, some authors who identify citizenship with the right to vote end up also accepting the legitimacy of punishment with respect to those who cannot vote by affirming that they at least have the right to express themselves politically. But, by reducing the standard of citizenship in this way, the advantages promised by the citizen criminal law vanish, because citizenship status is not truly taken into account when punishing.
Our proposal: proportionality between punishment and the bond of citizenship
In a recent co-authored article, we argue that there is a path to overcome this dilemma. The binary approach to citizenship is unfitting. In fact, the political link between a community and a person is scalar, meaning that there is a continuum of possible political relationships with varying intensities. For the sake of our proposal, as reference points at the extremes of this spectrum, we outline the ideal types of “full-citizen” (strong rights in all elements, i.e. civil, social, etc…) and “minimal semi-citizen” (those who at least enjoy very weak rights of some kind in a community). Now, if we take seriously the idea that the foundation of punishment lies primarily in the political bond between the punishing polity and the punished, then the strength of this bond (necessarily gradient) must be considered in the severity of the punishment. In other words: fewer (lower quality) rights guaranteed = weaker citizenship bond = less punishment when all other relevant variables (e.g., culpability or harm) are held equal. Thus, the full citizen and the minimal semi-citizen should be punished differently for the same offence.
This approach has two important virtues in comparison with the proposals of citizen criminal law referred to above. Firstly, our approach leads to a fairer and more individualised punishment of crimes committed by semi-citizens, insofar as it enables the infliction of a punishment that fits the (semi-)citizenship status, making it possible to distinguish between markedly different statuses, such as national and tourist. Secondly, by legitimising the imposition of punishment against individuals who lack the idealised status of full-citizens, we adopt a variant of citizen criminal law that suits the real world, where semi-citizens are the rule. In short, the semi-citizen criminal law approach can legitimate punishment on those only partially part of the state while circumscribing the severity of the punishment to the degree of their citizenship status.