Alan Wertheimer

Citizenship and community : civic republicanism and the modern world

1. Introduction Part I Citizenship and Community: An Analytical Statement 2. The Citizen in the Political Community Part II Citizenship and Community in the Civic-Republican Tradition 3. Machiavelli: Citizenship and Glory 4. Rousseau: Freedom, Virtue and Happiness 5. Hegel: Rational Freedom in the Ethical Community 6. Toqueville: Citizenship in Town and State Part III Citizenship and Community in the Modern World 7. The Modern Relevance of the Civic-Republican Tradition 8. Citizenship in Modern Democratic Theory

Forgiveness and Public Deliberation: The Practice of Restorative Justice

It is not easy to define the way we should be angry, with whom, about what, for how long. (1) Introduction Is forgiveness a social good that communities can further through mediated public dialogue between victims of crimes and offenders? Though commonly and rightly thought of as dependent upon personal feelings, in particular dependent upon the deliberate relaxing of the feeling of resentment, forgiveness has communicative and social dimensions. (2) These dimensions of forgiveness are at the forefront of the theory and practice of the restorative justice reform movement. Originating in just a few states in the 1970s, restorative justice programs are now quite common at the state and local level in the United States, handling mostly property offenses and minor assaults committed by juveniles. (3) The goal of restorative justice is to foster, through voluntary public dialogue, interpersonal reconciliation between victims and offenders as well as social reconciliation between offenders and the community. Trained facilitators encourage victims to express their feelings and to communicate to offenders the impact of their acts; facilitators also elicit communication from offenders about their life-situations and about their feelings of remorse or shame. The social dimension in restorative justice is furthered, in some programs, by the participation of community volunteers who symbolize the communitys interest in reconciling victim and offender and in reintegrating offenders. The restorative justice movement is of interest to political theorists and ethicists because it raises key questions about the link between public dialogue and positive emotional states like the relaxing of resentment experienced in forgiveness. Though we understand how public dialogue contributes to clarification of practical choices, we know much less about how it helps us transform our emotional responses toward others. (4) The movement is interesting, too, as a challenge to general normative theories of criminal justice. In the first part of the paper, we analyze the theoretical justification for restorative justice, develop the central ideal of restorative communication, and outline the public procedures required for this ideal. In this section, we describe the views held by restorative justice theorists without assessing their philosophical soundness or their empirical validity. Then we briefly turn to one case description of restorative justice, Vermonts reparative probation program. In both sections we are guided by simple questions: What is the ideal of restorative communication at the heart of theories of restorative justice? Why is such communication needed? What are its goals, exactly? What are its practical requirements? What is the function of its public, community-oriented dimensions? Our description of the goals and structure of Vermonts attempt to institute restorative communication leads, in the third section of the paper, to a more general discussion of the implications of seeing forgiveness as the central goal of criminal justice. Even if restorative justice theorists are right that forgiveness is a social good we can foster through public deliberation, just how important is this good? Is forgiveness in tension with other goods we wish to pursue through the criminal justice system? We believe that we should announce our objectives up front. Restorative justice is a multifaceted critique of mainstream criminal justice theory and practice, a critique with which we are partly sympathetic. Further, we see the ideal of restorative communication, and especially the goal of greater public participation in criminal justice administration, as rich theoretically and worthy of more empirical study. Our analysis and case description are meant to help focus such empirical assessment of restorative justice programs. Nonetheless, we are inclined to be quite skeptical as to whether the criminal justice system should seek to place forgiveness and restoration ahead of other objectives. …

Punishing the innocent — unintentionally

The intentional punishment of the innocent is ordinarily claimed to be a special problem for utilitarian theories of punishment. The unintentional punishment of the innocent is a problem for any theory of punishment which holds that the guilty should be punished. This paper examines the criteria that are relevant to a determination of the appropriate probability of punishment mistakes for a society, and argues that this is the kind of moral problem for which utilitarian judgments, as opposed to considerations of justice, are most appropriate. To illustrate some of the trade‐offs involved, the paper employs some hypothetical data.

Consent and Sexual Relations

This article has two broad purposes. First, as a political philosopher who has been interested in the concepts of coercion and exploitation, I want to consider just what the analysis of the concept of consent can bring to the question, what sexually motivated behavior should be prohibited through the criminal law? Put simply, I shall argue that conceptual analysis will be of little help. Second, and with somewhat fewer professional credentials, I shall offer some thoughts about the substantive question itself. Among other things, I will argue that it is a mistake to think that sexual crimes are about violence rather than sex and that we need to understand just why the violation of sexual autonomy is a serious wrong. I shall also argue that the principle that “no means no” does not tell us when “yes means yes,” and that it is the latter question that poses the most interesting theoretical difficulties about coercion, misrepresentation, and competence. In addition, I shall make some brief remarks concerning two questions about consent and sexual relations that lie beyond the criminal law: What “consent compromising behaviors” should be regarded as indecent, although not criminal? When should someone consent to sexual relations within an enduring relationship?