Democracy all the way down

Democracy and Criminal Law: The Case of Social Protests
1
Roberto Gargarella
Two examples
Let me begin this presentation by introducing two judicial decisions, one that was made in
Argentina in 2002, in the Schifrin case;
2
and the other that was written in ngland in 200!, in
the Austin and Saxby case"
#

$ will %irst address the Argentinean case" $n &!!', the schoolteacher (arina )chi%rin too* part
in a demonstration in the )outh o% Argentina, in demand %or higher salaries" The
demonstration was organi+ed by school teachers, and included the participation o% students
and their parents As it was common during those years, protesters decided to bloc* roads ,in
this case -ational Route -" 2#'. in /ariloche, in order to ma*e their claims audible" )chi%rin
was then tried and %ound guilty, as one o% the leaders o% the protest, %or breaching the law"
Remar*ably, the decision against )chi%rin, which was written by 0ederal 1udge Le2nidas
(oldes, included an order saying that she should abstain to participate in public
demonstrations composed o% by more than &0 people, and which too* place in inter.
jurisdictional routes, %or the %ollowing two years" The decision was then con%irmed by the
3igh 4ourt o% Appeals in 4riminal Law ,the Cámara Nacional de Casación Penal. $n the
opinion o% the Appeal 4ourt, the in5alidation o% 1udge (oldes6 decision would ha5e
represented 7a %ormidable contribution to chaos, anarchy, and the destruction o% rights8"
9
$n the central part o% its judgment, the 4ourt made re%erence to the democratic argument in
order to condemn (arina )chi%rin, a school teacher who had ta*en a leading role in the
bloc*ade" :uoting (iguel *medji;n, a %amous constitutional theorist, the 4ourt maintained
that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or expressing
the so5ereign will o% the people,8 which was su%%rage" Through this means ,it added. the
people 7accept or reject the alternati5es that the political class poses to them"8
The decision by the Argentinean Appeal 4ourt appeared in a context that was still
characteri+ed by high le5els o% go5ernmental or para.go5ernmental political repression
against demonstrators ,e5en though since 2002, and a%ter the death o% two young political
acti5ists <(ariano =ostec*i and >ar?o )antill;n@, the o%%icial discourse on the matter was one
o% no.5iolent.repression" According to a report by the 4enter %or )ocio.Legal )tudies
<4L)@, an institution that is considered to be situated close to the go5ernment, there were &A
deaths o% protesters in the period 200#.20&&" (oreo5er, in >ecember 20&&, the Argentinean
4ongress passed the Antiterrorist Law, which was in line with similar legislation adopted in
other Latin American countries, such as cuador or 4hile, where the antiterrorist law has
been 5astly used against demonstrators and political acti5ists"
&
$ want to than* Antony >u%%, Albert >+ur, lena Larrauri and $an Loader %or comments on a pre5ious 5ersion
o% this paper" Also, $ want to than* the Le5erhulme Trust %or a grant that allowed me to complete this research"
2
)chi%rin, (arina, n" #!0B , 0#C0'C2002
3
Austin v. Commissioner of the Police for the Metroolis, D200!E F=3L B"
9
)ee report by the 4enter %or )ocio.Legal )tudies <4L)@ at
httpGCCwww"cels"org"arCagendatematicaCindex"phpHin%oIdetalle>oc0JidsI&2JlangIesJssI2'JidcIA&#
1
Let us now turn to the second case, which too* place in ngland" Kn (ay >ay, 200&, there
was a mass rally organi+ed against globali+ation, at Kx%ord 4ircus, a commercial area in the
4ity o% London" The police had in%ormation about the meeting and assumed that there would
be outbrea*s o% public disorder, as it had happened in pre5ious demonstrations in the last two
years" Towards the end o% the demonstration, police surrounded about #000 people ,some o%
them who were in5ol5ed in the demonstration, and some o% them who were not. and re%used
to allow many o% them to lea5e" As a result, more than &000 people were retained against
their will %or around ' hours, without %ood, drin* or access to toilets"
Geo%%rey )axby and protester Lois Austin were among those who were then retained by the
police" -one o% them had been in5ol5ed in the exercise o% 5iolence" They sought damages
alleging depri5ation o% liberty, which was contrary to Art" B, uropean 4on5ention o% 3uman
Rights and s ' 3uman Rights Act" $n the 3igh 4ourt, Tugendhat 1 claimed that the restriction
o% rights was justi%iable under Article B"&", and that se5en hours was well within the scale o%
7promptly8 re%erred to in the Article"
B
$n his 5iewG
7The court must allow %or the %act that it may be 5ery di%%icult %or the police to identi%y the target or predict the
scale o% 5iolent disorder" $ conclude that the court should accord a high degree o% respect %or the police o%%icers6
appreciation o% the ris*s o% what the members o% the crowd might ha5e done i% not contained" At the same time
the court should subject to a 5ery close scrutiny the practical e%%ect which derogating measures ha5e on
indi5idual human rights, the importance o% the rights a%%ected, and the robustness o% any sa%eguards intended to
minimise the impact o% derogating members on indi5idual human rights"8
B
Article B" & reads as %ollowsG
Article ! " #i$ht to liberty and security%
&" 5eryone has the right to liberty and security o% person" -o one shall be depri5ed o% his liberty sa5e in the
%ollowing cases and in accordance with a procedure prescribed by lawG
a" the law%ul detention o% a person a%ter con5iction by a competent court;
b" the law%ul arrest or detention o% a person %or non.compliance with the law%ul order o% a court or in
order to secure the %ul%ilment o% any obligation prescribed by law;
c" the law%ul arrest or detention o% a person e%%ected %or the purpose o% bringing him be%ore the
competent legal authority on reasonable suspicion o% ha5ing committed an o%%ence or when it is
reasonably considered necessary to pre5ent his committing an o%%ence or %leeing a%ter ha5ing done so;
d" the detention o% a minor by law%ul order %or the purpose o% educational super5ision or his law%ul
detention %or the purpose o% bringing him be%ore the competent legal authority;
e" the law%ul detention o% persons %or the pre5ention o% the spreading o% in%ectious diseases, o% persons
o% unsound mind, alcoholics or drug addicts or 5agrants;
%" the law%ul arrest or detention o% a person to pre5ent his e%%ecting an unauthorised entry into the
country or o% a person against whom action is being ta*en with a 5iew to deportation or extradition"
2" 5eryone who is arrested shall be in%ormed promptly, in a language which he or she understands, o% the
reasons %or his arrest and o% any charge against him"
#" 5eryone arrested or detained in accordance with the pro5isions o% paragraph &"c o% this article shall be
brought promptly be%ore a judge or other o%%icer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial" Release may be conditioned by guarantees to
appear %or trial"
9" 5eryone who is depri5ed o% his liberty by arrest or detention shall be entitled to ta*e proceedings by which
the law%ulness o% his detention shall be decided speedily by a court and his release ordered i% the detention is not
law%ul"
B" 5eryone who has been the 5ictim o% arrest or detention in contra5ention o% the pro5isions o% this article shall
ha5e an en%orceable right to compensation"
2
The case con%irmed that the police ha5e a wide range o% powers to use 7e5en against peace%ul
protesters i% a %ew protesters are or may be disorderly8 <0enwic* 200', ''&@" Later on, the
4ourt o% Appeal rati%ied that a police cordon was a law%ul response to the particular
circumstances o% the (ay >ay situation" Also, and more signi%icantly, the 3ouse o% Lords
asserted that what was decisi5e in the case was the purpose or moti5e behind and the
intentions o% those who implemented the cordon <(ead 200!, A@" $n the case at sta*e ,as Lord
)cott put it. the purpose o% pre5enting damage to property and injury to persons ran*ed 5ery
high in the moti5ations o% the detainers"
The harsh attitude that the 1udiciary adopted, concerning public protests and popular
mobili+ations, %ollowed a renewed approach by the legislature in these matters, which began
to ta*e place in the mid.&!L0s" $n %act, the nglish Marliament promoted a more repressi5e
legislation at least since &!LA, when it passed the 7Mublic Krder Act8" This wa5e o%
authoritarianism was extended and bolstered during the conser5ati5e period, and then re.
a%%irmed with the -ew Labor go5ernment" The new legislation included the &!!9 74riminal
1ustice and Mublic Krder Act8; the &!!' 73arrasment Act8 <already with the -ew Labor in
power@; the &!!L 74rime and >isorder Act8; the 200# 7Anti.)ocial /eha5iour Act8; the 200B
7)erious and Krganised 4rime and Molice Act8; but also <li*e in Argentina@ the 7Terrorism
Act8 %rom 2000, which blurred the distinctions between terrorists and protesters"
These two examples, $ belie5e, pose crucial Nuestions concerning democratic authority and
democratic construction ,particularly so, in the %ace o% judicial decisions that actually limit
the scope o% political participation, and legislati5e decisions that discourage rather than
promote an acti5e citi+enryG Oho has or should ha5e the %inal say regarding the scope o% our
basic rightsH 3ow should we decide those %undamental Nuestions about the meaning and
content o% our basic democratic rightsH (ore generally ,as 1eremy Oaldron would put it.
how should we decide our pro%ound disagreements concerning our most cherished rights
<Oaldron &!!!@H )hould we decide those Nuestions through <what Oaldron called@ 7the right
o% rights,8 namely our participatory rights, or rather through traditional, o5er.centrali+ed
mechanisms o% judicial re5iewH

$n this paper, $ will be interested in exploring some o% these %undamental Nuestions, which
appear in the crossroad between democratic theory and 4riminal Law" The aim o% this paper
is two%old, partly descripti5e and partly normati5e" $n the %irst, descripti5e part o% this wor*, $
want to show what has been done in this intersection between the two disciplines" The
purpose o% this descripti5e part is to help those interested in wor*ing in the area to ha5e a
picture o% what exists and what is missing in the studies about democracy and the 4riminal
Law, and thus to also stimulate re%lections on the topic" (y main interest, howe5er, will be
normati5e, and the %inal part o% my paper will be dedicated to itG $ will ad5ocate %or a more
direct and signi%icant impact o% democratic theory within the domain o% 4riminal Law"
(ore speci%ically, the descripti5e part shall consist o% the study o% three examples showing
%ruit%ul, possible interactions between democratic theory and 4riminal LawG the %irst related
to criminal trials; the second related to the sentencing process; and the third related to the
penal decision.ma*ing" $n the second part o% the paper $ will suggest a more pro%ound and
basic integration between democratic theory and the 4riminal Law" $ shall illustrate my
normati5e 5iew by re%lecting on its implications concerning situations o% social protests as the
ones that $ introduced in the pages abo5e"
>emocracy and 4riminal LawG An $ntroduction
3
There are numerous reasons why $ thin* we should strengthen the lin*s between democratic
theory and 4riminal Law" 0irst o% all, %or those o% us who belie5e in the importance o%
democratic sel%.go5ernment, it seems clear that there are %ew problems more rele5ant than
those related to the use o% the )tate6s coerci5e powers" )econd, and more speci%ically, when
we re%er to the 4riminal Law, we are re%erring to a 5ery speci%ic and worrisome aspect o% the
)tate6s coerci5e powers" $n %act, )tate 5iolence may imply the in%liction o% pain and su%%ering,
incarceration, and e5en death" $t seems ob5ious, then, that %or those who care about sel%.
go5ernment, Nuestions about the limits and scope o% this particular *ind o% )tate 5iolence
cannot escape democratic re%lection and controlG what is at sta*e here is all too rele5ant"
0inally, $ should mention that in societies as the one in which $ inhabit <namely Argentina,
which $ do not thin* is too di%%erent %rom other Oestern societies@ the existence o% pro%ound
and unjusti%ied ineNualities ma*e the whole problem still more serious" $n deeply uneNual and
unjust societies, the ris* o% a biased, improper use o% the most dangerous )tate6s coerci5e
powers seems to radically increase" $n these contexts, pri5ileged groups begin to use those
coerci5e powers in de%ence o% their own un%air ad5antages" This situation gi5es us with
additional reasons to care about how the )tate6s coerci5e powers are used, and ensure that
they are subject to strict democratic regulation"
-ow, there are good and bad news in this respect" The bad news is that, in spite o% the
ob5ious existing connections between democratic theory and 4riminal Law, the two
disciplines ha5e not tended to intersect" Molitical philosophers, in general, and democratic
theorists, in particular, ha5e not demonstrated a great or signi%icant interest on basic Nuestions
about 4riminal Law" This omission seems perplexing, gi5en that 4riminal Law actually deals
with some o% the most rele5ant and dramatic issues related to the use o% the )tate coerci5e
powers" Kne could then wonderG 7DOEhat explains the reluctance on the part o% 3abermas and
most other theorists o% deliberati5e democracy to engage the topic o% punishment directly,
despite their interest in the coerci5e dimensions o% the lawH8 <de Grei%% 2002, #L9@" Ta*e, %or
example, the case o% three o% the leading political philosophers o% 20
th
4entury, namely 1ohn
Rawls in the Anglo.American world, 1urgen 3abermas in continental urope, and 4arlos
-ino in Latin America <3abermas &!!2, -ino &!L9, &!!A, Rawls &!'&, &!!&@" The three o%
them ha5e been deeply interested on %undamental Nuestions related to the justi%ication o%
)tate coercion ,they too* this justi%icatory problem as the most important problem %aced by
political philosophy" At the same time, they all clearly understood that a proper re%lection
about the justi%ied use o% the )tate coerci5e powers reNuired also re%lection about democratic
theory <it is worth noting that the three o% them approached democratic issues through a
deliberative concetion of democracy@" -ow, the %act is that e5en though they all recogni+ed
the need to say something more speci%ic about 4riminal Law, its justi%ication, and its
connection to democratic theory, none o% them decided to carry that re%lection much %urther"
A
The good news, howe5er, is that there ha5e been increasing theoretical e%%orts trying to repair
those serious omissions" 0irst o% all, we ha5e seen, in the last %ew years, a growing theoretical
interest in trying to establish the missing connections between 3abermas, -ino or Rawls6
conceptions o% democracy and justice, and basic issues o% 4riminal Law" Among other
rele5ant writings, we %ind >+ur J (irchandani6s wor* connecting 3abermas6 democratic
A
-ino6s case is particular, in this respect" $n the %irst long o% his academic li%e, -ino wor*ed directly and almost
exclusi5ely within the area o% 4riminal Law " <-ino &&!L0 &!L2, !L#, &!L#b, &!LB, &!LA, &!!&, 200'@" And he
dedicated most o% the second long hal% o% his academic li%e to issues o% 4onstitutional and >emocratic Theory
<-ino &!L9, &!!2, &!!A, 20&#@" 3owe5er, he almost ne5er came bac* to those initial issues about 4riminal Law
and loo*ed them through the lens o% his well.articulated conception o% deliberati5e democracy"
4
theory and 4riminal Law <>+ur J (irchandani 200'@, Mablo de Grei%% doing the same with
-ino6s democratic theory <de Grei%% 2002@, and )haron >olo5ich pursuing a similar tas* by
using 1ohn Rawls6 theory o% justice <>olo5ich 2009@" $n addition to this, we %ind many other
rele5ant writings trying to tie %undamental issues o% 4riminal Law together with central
issues o% political philosophy and democratic theory" Among many other important writings
ma*ing these connections we can ma*e re%erence to the wor* by 1ohn /raithwaite, Mhilip
Mettit and Antony >u%% <see, %or instance, /raithwaite &!L!, &!!', &!!L, &!!!, 2000;
/raithwaite J )trang 2000; /raithwaite J Mettit &!!0, &!!9, 2000; >u%% &!LA, &!!L, 200&,
2009, 2009b, 200B, 200Bb, 200Bc; Mettit &!!', &!!'b, 2002@

At this point, let me present the particular conception o% democracy $ will be ta*ing as my
standpoint in the %ollowing pages" This clari%ication may be rele5ant, gi5en the pro%ound
disagreements we ha5e concerning the meaning o% this essentially contested concept
<Oaldron &!!9@" At the same time, and precisely as a result o% the breadth and depth o% the
existing disagreements, $ do not want and will not ta*e as my standpoint a too demanding or
too polemic 5iew o% democracy" )o, in what %ollows $ will ta*e as a regulati5e idea o%
democracy one that is in line with the one that 3abermas, Rawls or -ino had in mind, when
they wrote about deliberati5e democracy" This 5iew, at least, has the ad5antage o% being
shared ,in one way or another. by numerous contemporary thin*ers wor*ing with theories o%
democracy <among many others, /ohman &!!A; /ohman J Rehg &!!'; 4ohen &!L!; >ry+e*
2002; lster &!!L; stlund 200!@"
$ do not want or need to propose as a regulati5e ideal an o5er.sophisticated or complex
5ersion o% deliberati5e democracy, which would only aggra5ate the le5el o% the existing
disagreements" /y contrast, $ will be herein assuming a rather simple or standard 5ersion o%
deliberati5e democracy, based on the %amous 3abermasian communicative aroach to
democracy, according to which a justi%ied public decision reNuires the deliberate agreement
o% &all those otentially affected' <3abermas &!!A@" There are basically two %undamental
notes in 3abermas6 claim, which $ will ta*e as the two basic reNuirements o% a deliberati5e
democracy" The %irst reNuirement relates to ublic deliberation, and the second to social
inclusion" )o, according to the regulati5e idea o% democracy that $ will be ta*ing into account,
a public decision will be in principle more justi%ied, the more it represents the product o% an
inclusi5e debate ,a debate among 7all those potentially a%%ected"8 $n sum, %or those who
assume this deliberati5e 5iew, legal norms should be the product o% i@ a broad collective
ublic discussion; in which ii@ all those otentially affected by those legal norms ta*e part"
(nclusiveness and ublic discussion appear, then, as the two main reNuirements %or a law to be
considered a legitimate law" To put the same point di%%erently, decisions that are the mere
product o% technocratic experts, or decisions that ha5e not been properly discussed by the
people at large, would not be here considered adeNuately justi%ied"
'
'
K% course, it is important to determine what *inds o% decisions $ am tal*ing about" The issue is extremely
complex and reNuires much additional wor* but, in principle, $ will be thin*ing about decisions on %undamental
public Nuestions or issues o% intersubjecti5e morality" This is to say, $ do not thin* we can justi%y democracy to
become so5ereign concerning issues o% personal morality, both %or reasons related to democracy and indi5idual
autonomy" An epistemic conception o% democracy, %or instance, would maintain that there are no epistemic
reasons %or de%erring to democratic authority with regard to issues o% personal morality <-ino &!L9@" Also, there
are issues related to the procedural and preconditions o% democracy that cannot be simply delegated to a
mal%unctioning process o% democratic discussion <ly &!L0; 3abermas &!!A@" 3owe5er, it is not ob5ious to me
that this paradoxical situation can easily be sol5ed through the use o% non.democratic procedures <which can
also be expected to wor* properly, in the context o% a %eeble institutional system@"
5
Oith these clari%ications in mind, $ will now proceed to examine three areas were we %ind
promising attempts to integrate the 4riminal Law and democratic theory"
>emocracy and 4riminal Trials
$n the last %ew years, 4riminal Law and democratic theory crossed their paths in di%%erent
occasions, and these encounters were usually 5ery rich" Kne o% the most interesting areas o%
intersection is that o% criminal trials, where the wor* o% Antony >u%%, 4arlos -ino or Mablo de
Grei%% played a leading role" $n di%%erent ways, they ha5e all been ad5ocating %or
communicati5e approaches that ha5e strong implications %or the criminal process" The
communicati5e commitment aspect their approach puts their theories together with other,
more established expressi5e theories o% punishment ,they appear to be in a relationship o%
species and genus" 3owe5er, and e5en though communicati5e theories and so.called
expressi5e theories o% punishment are clearly inter.related, it is important to di%%erentiate one
%rom the other"
$n general terms, it could be said that the main purpose o% expressi5e theories is
communicati5e <rather than, %or example, rehabilitation, su%%ering or 5engeance@" Ohat
expressi5e approaches want is to communicate condemnation to the criminal %or the
wrongness o% the act he committedG they 7disa5owDE that act as one which is not to be
tolerated or condoned8 <>u%% &!LA, 2#B@" 0or example, according to 1ean 3ampton6s
particular approach to expressi5e punishment, punishment gains justi%ication as a result o% its
<potential@ ser5ice to moral education" Thus, punishment is justi%ied 7as a $ood %or those who
experience it8, rather than as a 7deser5ed e5il8 <3ampton &!L9, 2#'@" 3ampton compares this
situation with the parent who punishes his belo5ed son, and statesG 7the in%liction o% pain by a
parent on a belo5ed but naughty child, suggests to me that punishment should not be justi%ied
as a deser5ed e5il, but rather as an attempt, by someone who cares, to impro5e a wayward
person8 <ibid"@" Kne may disagree with 3ampton6s 5iew %or di%%erent reasons <i"e", concerning
the contribution o% the depri5ation o% liberty to moral education@, but still agree with the basic
purpose o% her enterprise, which is to approach to the 4riminal Law %rom a communicati5e
perspecti5e" Oe may say something similar regarding another well.*nown 7expressi5e8 5iew,
such as the one ad5anced by 1oel 0einberg" According to 0einberg, 7punishment is a
con5entional de5ice %or the expression o% attitudes o% resentment and indignation, and o%
judgments o% disappro5al and reprobation, on the part either o% the punishing authority
himsel% or o% those Pin whose name6 the punishment is in%licted8 <0einberg &!'0,
!A@" 3owe5er, the %act is that 7expressi5e8 approaches to 4riminal Law, li*e the ones that
1oel 0einberg or 1ean 3ampton once o%%ered, ha5e only a thin connection with the central
goals and ambitions o% a deliberati5e democracy" $n e%%ect, expressi5e approaches seem to be
mainly interested in 7one.direction8 communication, where the o%%ender can only listen and
%inally accept the message that the others want to con5ey to him"
/y contrast, communicati5e approaches as those $ want to de%end here see the 4riminal
process in a di%%erent %ashion, which seems more clearly related to the basic assumptions o% a
deliberati5e democracy" $n e%%ect, in >u%%, -ino or de Grei%%6s communicati5e approach, the
4riminal process is concei5ed o% as a dialo$ic process, where the o%%ender is not simply seen
as a passi5e recipient o% a public reproach" $n other terms, in the *ind o% communicati5e
approach that they ad5ocate %or, the 4riminal process is seen as a 7two.way8. process, where
one part tries to acti5ely address the other, resorting to his reason, rather than his %ear" The
entire point o% the process is to engage into a moral dialo$ue with the o%%ender, trying to
appeal to his reason and his understanding"
6
Oith the support o% 1urgen 3abermas and 4arlos -ino6s wor* on democratic theory, de Grei%%
reads and interprets expressi5e theories o% punishment in a 7dialogic8 manner <de Grei%%
2002, #!0@"
L
/ased on those premises, he sees the criminal trial as a process where we engage
with o%%enders as moral agents and do our best to appeal to their reason and understanding"
0or him, 7the point is not merely that in blaming someone we simply claim that there are
moral reasons why he should ha5e a5oided acting as he did, but that we o%%er those reasons to
him" $n blaming someone we engage him in a moral discussion whose aim is to get him to
accept our judgment on his action8 <ibid", #!0.&@" K% course, the process may %ail, because the
o%%ender remains unpersuaded by our arguments" (oreo5er, we need to be prepared to 7be
persuaded by him to modi%y DourE original judgment on his conduct8 <ibid", #!&@" /ut the %inal
point is the sameG 7the aim o% blaming is not merely to get people to change their beha5ior,
but to do so %or the right reasons8 <ibid"@" At this point, de Grei%% 5iew on the criminal trial
becomes indistinguishable %rom that o% Antony >u%%"
Antony >u%% has de5eloped a communicati5e approach to the 4riminal Law during years, but
it was only recently when he o5ertly made a connection between that 5iew and a deliberati5e
idea o% democracy <>u%% and (arshall 200'; >u%%, 0armer et al" 200'@" 3e explicitly
endorsed 7participatory and deliberati5e conceptions o% democracy8 in order to pro5ide
support %or his 5iew o% the trial as a 7process o% calling to account, as just one o% the 5arious
ways in which, as participants in the wide range o% practices o% reason that structure our li5es,
we hold each other responsible8 <>u%% and (arshall 200', 220, 29&@" $n recent years, >u%%
has pro5ided us with what is probably the best and more in%luential account about dialogic
criminal trials, and how they could loo* li*e" 0or >u%%, 7to put someone on trial, and to
punish him %or his wrongdoing, is to treat him as a member o% the normati5e community
under whose laws he is tried and punished"8 The accused has to be addressed as a 7%ellow
member o% a normati5e community whose 5alues he can be expected to understand and
accept8 <>u%% 200L, &!LA@" (oreo5er, he has to ha5e a %air opportunity to be listened to, and
his 5iews ha5e to be ta*en seriously and duly weighed"
$n sum, in spite o% their <partially@ di%%erent theoretical bac*grounds and goals, the wor* o%
>u%%, -ino or de Grei%% pro5ides us with interesting examples o% how democratic theory
could intersect with 4riminal Law in order to reno5ate our thin*ing o% criminal trials"
!
>emocracy and )entencing
$n the pre5ious section, we explored di%%erent suggestions coming %rom democratic theory in
relation to the organi+ation o% criminal trials, and how they could be impro5ed" 3erein, we
shall explore some proposals, also deri5ed %rom democratic theory, concerning criminal
justice sentencing" $n general terms, as we shall see, ad5ocates o% deliberati5e theories o%
democracy <or similar@ ha5e shown interest in changing the sentencing process, so as to ma*e
L
Gi5en the rather 7natural8 or ob5ious connections between a deliberati5e 5iew o% democracy and a
communicati5e understanding o% punishment, it is surprising that authors such as 4arlos -ino ,one o% the %irst
scholars in de5eloping a robust theory o% deliberati5e democracy. did not %ully pursue that connection" -ino
began and %inished his academic career writing about 4riminal 1ustice <-ino &!L0, &!!Ab@, but in the decades in
between he de5eloped a power%ul democratic theory <-ino &!!A@" Mablo de Grei%% rightly points out to this
missing lin* in -ino6s academic writings, re%erring to the %act that, e5en his latest writings, -ino still grounded
his 5iews on 4riminal 1ustice on moral premises alone, lea5ing no clear role to his 5iews on democratic
legitimacy <de Grei%% 2002, #L#@"
!
To state this, howe5er, does not mean that one could not %a5or such 5ie won the trials %rom other di%%erent
perspecti5es, not necessarily related to the democratic perspecti5e that is here de%ended"
7
it more deliberati5e and, more signi%icantly, more inclusi5e and open to ci5il society" $n this
way, they ha5e challenged traditional legal approaches, which are distinguished by their
indi5iduali+ed and juricentric %eatures" $n what %ollows, $ will %ocus on two main alternati5es
to the pre5alent sentencing process"
The %irst alternati5e that $ want to explore relates to studies on restorati5e justice" (ore
speci%ically, $ will illustrate the %irst alternati5e through the inno5ati5e approach to restorati5e
justice that was de5eloped by 1ohn /raithwaite, particularly in collaboration with Mhilip
Mettit" $nspired both by a republican political philosophy and also by the enormous theoretical
and practical wor* on restorati5e justice that has been done in the last decades, 1ohn
/raithwaite and Mhilip Mettit ha5e de5eloped a complete and renewed approach to criminal
justice <Ashworth 2002; /raithwaite &!!L; /raitwhwaite J Mettit 2000; 4ragg &!!2;
(arhsall &!!!; Oalgra5e 2000, 200L@" Their theory was de5eloped in its most complete %orm
in their boo* Not )ust *eserts, but they re%ined some o% their basic ideas in numerous other
papers that they wrote indi5idually or together <see, %or instance, /raithwaite &!L!, &!!',
&!!L, &!!!, 2000; /raithwaite J )trang 2000; /raithwaite J Mettit &!!9, 2000; Mettit &!!',
&!!'b, 2002@.
0or /raithwaite and Mettit, the criminal system should be designed 7not primarily to punish
o%%enders but, rather, out o% community.based dialogue, to bring home to them the
disappro5al o% others and the conseNuences %or others o% what they did8 </raithwaite J Mettit
&!!9, 'A'; /raithwaite J Mettit &!!0@" The idea o% %ostering community.based dialogues
seems an interesting proposal, which is 5ery much in line with the principles and objecti5es
o% a deliberati5e democracy" $nstead o% concei5ing the sentencing process as a process that is
directed against an o%%ender who has been singled out because o% the %ault he committed, here
it is understood as a collecti5e enterprise concerning a problem that, more or less directly,
in5ol5es the entire community" The %inal goal o% that process is not to obtain an
indi5iduali+ed sentence against a particular indi5idual who <most probably@ will be then
punished through a loss o% liberty, which implies his being separated %rom the rest" Rather, the
purpose o% these community.based solutions is to create the conditions %or ma*ing collecti5e
dialogue possible" The idea is to repair a crime that was committed against the entire
community, so as to restore the pre5iously existing situation, healing the social bonds that
were damaged, and reintegrating the o%%ender to the community"
$n consonance with those assumptions, /raithwaite and Mettit ha5e %a5ored 7a radical
redesign o% the criminal justice system8, based on community accountability conferences as
the ones that ha5e ta*ing place in -ew Qealand and Australia <and more recently in F)A,
4anada or the F=@,
&0
which ha5e permitted deciding most criminal cases outside the
courtrooms"
&&
4ommunity con%erences are a restorati5e justice practice, designed to bring
%amilies and relati5es o% 5ictims and o%%enders together, to %ind their own solutions to
con%licts <Qinsstag J Ran%raechem 20&2@" As Lode Oalgra5e has put it, the con%erence is an
7inclusi5e process8 aimed at %inding solutions to 7the problems and harms8 caused by
particular o%%ences <Oalgra5e 200L, #9@" Through its emphasis both on inclusion and
&0
$n these con%erences, 7a %acilitator in5ites the o%%enders to nominate as participants the people most important
in their li5esSRictim<s@ also attend and are in5ited to nominate participants with a special relationship o% care
to support themSthe selection principle is designed to structure both shaming and reintegration o% both
o%%enders and 5ictims into the con%erence Sparticipation o% supporters o% both o%%enders and 5ictims is intended
to structure reintegration into proceedings8 </raithwaite J Mettit &!!9, ''0; >+ur J (irchandani 200', &B2@"
&&
According to their study, 7community accountability con%erences ha5e wor*ed better than courts in conditions
o% the most extreme imbalance o% power imaginable ,cases in which the o%%enders were global corporations and
5ictims were illiterate citi+ens o% remote Aboriginal communities8 <ibid"@"
8
deliberation, the con%erence.method seems particularly appropriate %rom those who care
about deliberati5e democracy"
&2
$n sum, community con%erences represent an attracti5e
alternati5e to pre5ailing approaches to sentencing, which properly honor the main 5alues o%
democratic deliberation, namely dialogue, inclusion, persuasion or eNuality"
&#
Let me now examine a second alternati5e to juricentric, top.down approaches to sentencing,
which comes %rom academic wor*s see*ing to re5itali+e the institution o% the jury" $n
particular, $ want to %ocus my attention on recent wor*s by Albert >+ur, who has been trying
to explicitly re.connect his studies on the jury with basic issues o% deliberati5e theory <>+ur
20&2@"
A harsh critic o% both penal elitism and penal populism, >+ur demonstrates how, as a
conseNuence o% these theoretical in%luences, the dominant system o% criminal justice tends to
be organi+ed around tribunals that 7produce distance8 with the public; 7impede 5ictims,
o%%enders, and members o% the public %rom recogni+ing the human su%%ering in both criminal
o%%enses and in state punishment;8 and %oster 7segregation, separation, and ultimately,
dehumani+ation8 <>+ur 20&2, &'.20@"
$n addition, the pre5alent situation seems to undermine the chances o% alternati5e
arrangements li*e the jury, which emphasi+es the importance o% public participation in penal
sentencingG juries ha5e thus been con%ined to the margins o% the criminal justice system"
According to >+ur, in countries li*e Great /ritain the jury has been limited to only the most
serious criminal trials, while in America it 7has been on the decline %or decades as state and
%ederal jury trials ha5e shrun* in absolute members and as a percentage o% total cases <ibid",
B.A@8 7)upplanted by plea agreements, settlements, summary judgements, and nontrial
%orums8 ,>+ur adds. 7juries in the Fnited )tates hear a 5ery small %raction ,around B percent
or lower. o% all cases8 <ibid"@" As a conseNuence, he admits, commentators 7now tal* about
the Peclipse6, Pdisappearance6, and ine5itably, the Pextinction6 o% the jury8 <ibid", A@"
0acing these tendencies, the purpose o% >+ur6s recent wor* has been trying to strengthen
support to the jury, restorati5e justice and other legal mechanisms that could contribute to
7close social distances between o%%enders and 5ictims, and between the people who commit
o%%enses and the people who li5e near them and will li5e near them when the are done ma*ing
amends8 <>+ur 20&2, #!@" These responses, >+ur assumes, can promote people6s ci5ic
capacities, stressing our 7interconnectedness8 and 7relationships that lin* us together8 <ibid"@"
Again, what we ha5e here is an approach to sentencing that is openly lin*ed to deliberati5e
approaches to democracy, and modelled by its %undamental principles o% collecti5e dialogue
and social integration"
$t is worth noting the way in which these more democratic alternati5es promote a
decentrali+ed, open, hori+ontal, collecti5e, discussed, case.sensiti5e way o% producing
&2
3owe5er, it seems also clear that this conclusion depends on some additional normati5e premises, %or instance
related to <say, communitarian or republican@ theories o% justice, which some deliberati5e democrats may %ind
unappealing"
&#
4ommunity con%erences, so concei5ed, are 5ery di%%erent %rom mediation processesG here we do not get
7mediation between two indi5iduals, but a problemsol5ing dialogue between two communities o% care8
</raithwaite J Mettit &!!9, ''2; 0iss &!L9@" These inno5ati5e practices con%ront ob5ious ris*s </raithwaite J
(ug%ord mention, %or example, those o% 7re.pro%essionali+ation, patriarchy, ritualistic proceduralismSand
inappropriate net.widening@, which tend to be compensated by some o% its attracti5e 5irtues <they mention 7the
general direction o% change is away %rom these pathologies; it is depro%essionali+ing, empowering o% women,
oriented to %lexible community problem.sol5ing and, %or the most part, narrowing nets o% state control8,
/raithwaite J (ug%ord &!!9, &AL@"
9
sentences, which pro%oundly contrasts with the dominant model o% top.down, 5ertical,
juricentric decisions, epitomi+ed by the system o% sentencing guidelines that has gained
increasing in%luence in the Anglo.American world <Ashworth J Roberts 20&#@"
&9

This exploration, $ hope, helps us illustrate the ways in which democratic theory has
inter5ened or can inter5ene in basic academic debates within the 4riminal Law" The
examples that $ presented expose the richness and potential o% the democratic approach, and
at the same time demonstrate the capacity o% democratic theory as a critical tool in the %ace o%
hardly justi%iable dominant practices"
>emocracy and Menal >ecision.(a*ing
)o %ar we ha5e explored possible connections between deliberati5e theory and the criminal
trial and sentencing processes" 3erein, $ want to pay attention to the way in which
deliberati5e democracy may help us challenge the two %orces that ha5e been dri5ing penal
decision.ma*ing in the last decades, namely enal elitism and enal oulism. >emocracy, $
will maintain, reNuires all norms, but particularly 4riminal Law norms <gi5en the dramatic
implications they ha5e@ to be %ully discussed by all those who may be a%%ected by their
existence or their absence"
Although, in principle, penal elitism and penal populism are presented as opposed 5iews, the
two approaches seem to be closely connected in their actual, shared elitism" +litist views
appeal to the eole,s interests, without e5er as*ing the people about their actual 5iewpoints"
(eanwhile, oulist views appeal to the eole,s will- without e5er engaging with them in a
%air con5ersation about their actual 5iewpoints" $n the end, none o% these 5iews seems to ta*e
seriously the 5iewpoints o% the actual people that they claim to represent"
0rom the perspecti5e o% a deliberati5e democracy, both approaches are unattracti5e because
o% the way they deal with democracy6s two main reNuirements, namely social inclusion and
deliberation. litist approaches to criminal justice .as $ will understand them here. emphasi+e
the role o% technocratic experts in e5erything that concerns the 4riminal Law <and
conseNuently dismiss the importance o% issues o% social inclusion@, while populist approaches
ha5e at least a rhetoric o% social inclusion, while dismissing the 5alue o% %air public
deliberation" Ta*ing into account these 5ery basic characteristics, one could also maintain that
penal elitism is, %or democrats, particularly %lawed in what concerns social inclusion, while
penal populism is particularly %aulty in what concerns collecti5e deliberation" Let me explore
these two 5iews separately"
i. Penal +litism and *emocracy
According to >a5id Garland, enal welfarism dominated policy.ma*ing 7in the decades
%ollowing the )econd Oorld Oar8 <Garland 200&, &9B.A@" >uring the years o% its ascendancy,
4riminal Law policies were created by go5ernmental experts and pro%essional practitioners"
These policies were the product o% 7expert *nowledge and empirical research8, and they
usually assumed that re%orm and social inter5ention were plausible responses to crime <ibid"@"
-ow, %rom a democratic perspecti5e, penal wel%arism can be seen as a clear example o%
elitism ,in this case, elitism o% the liberal type" As some criminologists ha5e put it, it was the
time o% the 7Mlatonic guardians8G 7Oe were the Mlatonic guardians; there was no Nuestion
&9
To state this, howe5er, does not mean that decentrali+ed models simply manage to sol5e all the problems that
the system o% sentencing guidelines was directed at sol5ing"
10
about that" Oe had a pretty good idea o% what needed to be done, and we thought it was right8
<Ryan 200#, &A; Loader 200A, BA#@"
$n the %ace o% pre5ailing elitist policies <no matter the way they co5er their elitism, or the
rhetoric they employ in their de%ense@, the responses coming %rom deliberati5e democracy
must be clearG more inclusion and more discussion" $n occasions, but not %reNuently, theorists
o% the 4riminal Law ha5e ac*nowledged the importance o% these democratic reNuirements"
$an Loader, %or example, has objected to the rule o% the 7Mlatonic guardians8 in criminal
justice, and suggested the promotion o% democratic institutional re%orms in the area" $n his
words, 7we need to design institutional ways o% li5ing with, and see*ing to ma*e as inclusi5e
and in%ormed as is possible, the mediated public contests about crime and punishment that
ha5e become a recurrent %eature o% our time8 <Loader 200A, BL2@" 0or him, 7open public
debate about crime and punishment is not something that democratic societies are or should
be able to shy away %rom" $ndeed, under the right conditions, such dialogue can buttress the
public reason that Mlatonic guardians ta*e to be %ragile, and help counter the spontaneous
con5ictions that they %ear willSrun dangerously amo* through the institutions o% criminal
justice8 <ibid"@" Oe %ind similar democratic responses in the wor* o% Loader J )par*s"
According to them, 7Nuestions o% crime, order and justice are ,and should be. settled through
political contest and debate8 <Loader J )par*s 20&&, #0@"
&B
$n my 5iew, these initial responses point to the right directionG penal decision.ma*ing has
become an unjusti%iable elitist practice; democracy needs to meet the 4riminal Law e5en at
this le5el; we should not be a%raid o% opening the discussion o% crucial issues o% public
interest to the general public" 4oncerning these %undamental points, deliberati5e democrats
cannot agree more with Loader, )par*s and other theorists who ha5e stressed the importance
o% insu%%lating democracy to the 4riminal Law" -ow, and ha5ing said this, we still ha5e to see
what are the concrete practical implications o% these initiati5es" Oe *now some o% them, %or
instance in what concerns policing policies, and they seem 5ery appropriate <see, %or instance,
Loader &!!A, &!!', 2000@" 3owe5er, it is still not clear %or me how much these proposals
di%%er %rom other still elitist 5iews that ha5e been de5eloped in this area, which $ want to at
least brie%ly explore in the %ollowing paragraphs"
&A
&B
$t is not clear, howe5er, how much these 5iews di%%er %rom the one presented by Mettit 2002, which we will
examine in the %ollowing paragraphs"
&A
(ainly, $ am thin*ing about the more recent wor* o% philosophers li*e Mhilip Mettit" Mettit has de5eloped an
interesting and no5el approach to democracy <Mettit 2002, &!!'b, 20&2@ and, particularly ta*ing into account
those attracti5e de5elopments, the proposals that he presented in the %ace o% increasingly puniti5e policies seem
somehow surprising" Mettit seems to be particularly concerned with what he calls 7the outrage dynamic8 that
operates in the area o% criminal justice <Mettit 2002, 92!" )ee also Qimring et al 200&@" The dynamic would ta*e
the %ollowing %ormG %irst, the )tate exposes to society a certain e5il; second, the exposure o% this e5il leads, then,
to popular outrage; and third, the popular outrage %orces go5ernment to adopt new <and normally repressi5e@
measures <ibid", 9#0; similarly, Qimring et al 200&, 2#2@" Ta*ing into account this 7outrage dynamic8, Mettit
suggests ta*ing the sentencing policy 7out o% the direct hands o% parliament and gi5en in the %irst instance to a
body that operates at arm6s length %rom parliament and go5ernment8 <li*e a central ban*@" $n this way, the area
o% sentencing policy would be totally remo5ed 7%rom the immediate pressures o% popular outrage8 <ibid, 992@" $n
my 5iew, e5en i% we accepted his descripti5e presentation, as $ do, we would still ha5e no good reasons to
ad5ance proposals as the ones he ad5ances" 0rom the standpoint o% a deliberati5e notion o% democracy, one
should at least ma*e two objections to Mettit6s 5iew" The %irst objection has to do with the deliberative
reNuirement o% democracy" $% we recogni+e with him that the main origins o% the obnoxious 7outrage dynamic8
reside in the sensationalist media, or the people6s lac* o% in%ormation, or the absence o% adeNuate %orum o%
debate, then the reaction should be the ob5ious one <which does not seem to be the ob5ious to Mettit@, namely, to
promote public discussions; open new %orums %or political debate; create new sources %or the transmission o%
impartial in%ormation; reduce the in%luence o% money in the media and in politics; etc" <this is basically the same
conclusion reached by >+ur and (irchandani 200'; (art? 200!; and 1ohnstone 2000@" )econd, and concerning
11
ii. Penal Poulism and *emocracy
Ohile penal elitism was particularly in%luential during the &!B0s, and the years that %ollowed
the consolidation o% Oel%are )tate, the new experience o% 7law and order8 appears as a more
contemporary phenomenon, associated with neo.conser5ati5e and neo.liberal policies and,
more speci%ically, to political phenomena as those that we *new as 7Thatcherism8 and
7Reaganism8 <Garland 200&, &9B.A@"
$nitially, Antony /ottoms used the phrase 7populist puniti5eness8 to 7con5ey the notion o%
politicians tapping into, and using %or their own purposes, what they belie5e to be the public6s
generally puniti5e stance8 <&!!B, 90@" 0or >a5id Garland, penal populism re%ers to a 7new
experience8 o% 7law and order8 were experts are distrusted and legal decisions are greatly
in%luenced by popular opinion and the media <Garland 200&, &9B.A@" $n %act, the term
7populism8 has became associated to politics o% 7though on crime8, and emotional responses
usually %ollowing some horri%ic crimes that generate intense media attention <Roberts et al
200#, 5iii; Garland 200&@"
&'
The new populist %ormula represented an unbeatable and
success%ul combinationG it was a highly pro%itable political proposal that promised great
achie5ements in terms o% crime reduction, and which was, at the same time, highly justi%ied
and legitimi+ed in democratic terms"
The pro%itable political character o% these new policies seems to be out o% the Nuestion" /y
contrast, their e%%ecti5eness and justi%ication has been the object o% much dispute" $n terms o%
e%%ecti5eness, some authors maintained that, in balance, the costs imposed by these policies
were excessi5ely high, and some others suggested that the new 7tough on crime8 policies
were, in actual practice, much less e%%ecti5e than announced </ene*os J (erlo &!!B;
Greenwood et al &!!9; )tol+enberg J >6Alessio &!!'@" $n any case, and %or the purposes o%
this paper, $ will here %ocus on the criticisms that were directed to the democratic justi%ication
o% these sentencing policies"
Let me start this analysis by ma*ing three points, which are connected to the two main
concerns o% deliberati5e democracy, namely issues related to inclusion and issues related to
debate" 0irst o% all, populists tend to appeal to the 7people6s will8 but, in %act, they %reNuently
do not bother in actually consulting the people they re%er to" Mopulists do not seem to be
actually interested in engaging with those they constantly in5o*e" As 1ohn Mratt ,one o% the
the inclusive reNuirement o% a deliberati5e democracy, it seems clear that his proposal is problematic in its
suggesting ta*ing penal policy ma*ing away %rom the hands o% the people, and proposing the adoption o% new
counter.majoritarian institutions" >eliberati5e democracy does not propose inclusi5e discussions o% public
issues out o% a pre%erence %or multitudinous meetings, but rather because it considers that well.designed
collecti5e deliberations %a5our impartiality <(art? 200!@"
17
Kne o% the best *nown, recent cases o% penal populism appeared during the early &!!0s, a%ter the state o%
4ali%ornia introduced its 7three stri*es and you are out8 mandatory legislation %or sentencing <Qimring et al
200&@" The case is also particularly signi%icant %or those interested in exploring the critical capacity o%
deliberati5e theories o% democracy" 4ali%ornia was not the %irst F")" state in adopting harsher sentencing policies
o% the type, but its case became salient because its renewed puniti5e strategy was subjected to popular
consultationG the three.stri*es rules recei5ed a '2T o% 5otes in appro5al" The new mandatory.sentencing law
pro5ided %or progressi5ely longer sentences with an increasing number o% prior con5ictions %or serious
%elonies" 0ollowing the 4ali%ornian example, by the mid.&!!0s almost e5ery F")" state, and also the %ederal
go5ernment, had enacted some type o% mandatory sentencing legislation" These e5ents only con%irmed the
presence o% a renewed populist trend in 4riminal Law <we shall come bac* to this point below@, which began to
regain %orce in numerous Oestern countries, %rom ngland to Argentina <Garland 2002; Ryan &!!!; 1ohnstone
2000, )o++o 20&&@" The idea was that the majority o% the people demanded tougher sentencing policies, and that
democratic )tates should obediently %ollow those popular claims in order to success%ully con%ront crime"
12
leading academics wor*ing with penal populism. put it, 7penal populism8 re%ers to those
politicians and groups who claim to sea/ on behal% o% 7the people8 in relation to the
de5elopment o% penal policies <Mratt 200'@" Mopulists usually reNuire the adoption o%
7tougher8 criminal policies as i% it were simply ob5ious that such a policy was what the
majority o% the population demanded" This has been a typical populist attitude in Latin
America, where policies o% 7though on crime8 ha5e also acNuired a growing rele5ance during
the last decades"
&L
4learly, this is also a typical case o% populism %ailing to ta*e the inclusive
character o% democracy seriouslyG thus, and in spite o% its rhetoric, populism simply becomes
another 5ersion o% penal elitism"
The second point concerns populists who re%er to opinion polls o% one or another *ind, in
order to Nuic*ly extract puniti5e lessons %rom them" $n these cases, democratic theory would
%irst recommend pausing %or a while and do not hurry in our race %or puniti5ism" Authors
such as Antony /ottoms, %or example, ha5e demonstrated the complexity o% the people6s
attitudes to crime and punishment </ottoms &!!B; Roberts J 3ough 2002; Roberts J 3ough
2002b@" Oriting against the unsophisticated assumptions and dramatic conseNuences o% the
new populist policies, /ottoms has established that 7we cannot spea* in any straight%orward
%ashion about Ppublic opinion6 on crime in a way that automatically eNuates it with a hea5ily
puniti5e approach8 </ottoms &!!B, 90@" Re5iewing the exiting literature on the topic, Gerry
1ohnston has also concluded that 7a care%ul trawl through the results o% sur5eys will turn up
plenty o% e5idence to the e%%ect that public opinion is Pmore di5erse, and less outrightly
puniti5e than DisE usually supposed8 <1ohnstone 2000, &A9@"
The third point is, howe5er, the most rele5ant one %rom the perspecti5e o% a deliberati5e
democracy" $t re%ers to the importance o% distinguishing between 7mere opinions8 and
7deliberati5e judgements,8 and in5ites us to resist tri5iali+ations concerning democracy and
collecti5e debate" 0or example, studies such as the one presented by >a5id Green in the
0ritish )ournal of Criminolo$y 200B ha5e been rele5ant in helping to distinguish between
7public opinion and public judgment about crime8 <Green 200A@" $n his wor*, Greene tried to
build a case %or more de%ensible assessments o% in%ormed public opinion on crime control and
penal policy <Green 200A@ Green6s article, among others, came to pro5ide support to one o%
the basic claims o% deliberati5e democrats in this area, which actually explains their
insistence about the importance o% promoting actual democratic debates" 0or deliberati5e
democrats, the idea is that collecti5e public discussion is crucial %or allowing each person to
7launder8 her own pre%erences <Goodin &!LA@" Through public debates ,it is here assumed.
each person has the possibility to correct her own mista*es; incorporate new and rele5ant
in%ormation to her reasoning; dilute unjusti%ied prejudices; clari%y ambiguities and
contradictions in her thin*ing, etc" This is why deliberati5e democrats support institutional
systems that do not ta*e the people6s pre%erences as 7gi5en8G they see people6s declared
pre%erences or 7mere opinions8 as endogenous outcomes o% a process that in5ol5ed, o%ten,
prejudice, resignations and injustice" This is why, in the end, they ma*e a clear separation
between the mar/et and the forum <lster &!LA; Gutman J Thompson 2009@"
&!
&L
At the 5ery moment $ was writing these lines, in my country, Argentina, the main opposition leader was
attac*ing a rather liberal proposal %or 4riminal Law re%orm, through populist arguments" 3e also mentioned ,
although nobody seems to be ta*ing his threat seriously. that he would start collecting signatures against the
re%orm" )ee, %or example, httpGCCwww"clarin"comCpoliticaC4odigo.Menal.(assa.consulta.
re%ormarloU0U&0!9L!0B&9"html
httpGCCwww"in%obae"comC20&9C0#C0LC&B9LA9L.massa.comen+o.la.junta.%irmas.contra.la.re%orma.del.codigo.
penal
13
Green6s article .%ocused on the 4riminal Law, and theoretically grounded on the wor* o%
deliberati5e democrats such as 1urgen 3abermas. helps emphasi+e the pre5ious point" $n his
5iew, 7most typical conceptions o% public opinion are not based on deliberation8 <Green
200A, &B0@" 0or him ,and this is the main conclusion o% his study. 7public opinion8 should be
simply deemed as 7unin%ormed, unconsidered opinion, tending to lac* 5alidity on contentious
issues, measuring top.o%.the.head reactions to Nuestions about which little is *nown8 <ibid"@"
Kther studies, also inspired by deliberati5e theories o% democracy, such as the one by >+ur
and (irchandani, insist on a similar point, and present 7puniti5e populism o% three stri*es
laws as mere opinion8 <>+ur and (irchandani 200', &A#@" >+ur and (irchandani ma*e an
exhausti5e analysis o% neo.puniti5e populist policies, and demonstrate the %laws o% puniti5e
polls %rom a democratic standpoint" 0or them, deliberati5e decisions reNuire 7rational- oen-
on$oin$ and ultimately value luralistic DdebatesE', which cannot be %ound, in any
signi%icant way, behind the adoption o% three stri*es laws <>+ur and (irchandani 200', &A9@"
These studies, $ belie5e, ha5e been doing an important ser5ice, by urging us not to accept
mar*et polls as eNui5alent to democratic debatesG there is a huge di%%erence between them,
which should always be ta*en into account, and most particularly at times o% designing new
public policies" These wor*s ha5e also come together with some interesting theoretical and
practical e%%orts directed at the promotion o% deliberati5e polls, which seem to be suitable
mechanisms %or measuring public 5iews about criminal justice issues, certainly more
promising than traditional polls <Green 200A, &9'; Lus*in et al 2002 @"
20
>emocracy all the way downG >eliberati5e democracy, social protests and authority
3erein, $ shall explore di%%erent %orms in which the criminal justice system could be changed,
in ways that strengthened and expanded its democratic character" /e%ore doing that, let me
brie%ly summari+e our %indings so %ar" 0irst o% all, we ha5e explored how criminal trials could
be re.imagined and re.organi+ed according to more robust democratic theories" K% course, to
state this does not mean that things ha5e changed or somehow impro5ed in the direction o%
more democracy, in the last %ew years" $n %act, one could say, 5ery little has changed, and the
examples with which we began this exploration <Austin and Saxby- Schifrin@ only con%irm
that uncom%ortable news" 3owe5er, it is still important to reali+e that democratic theory has
demonstrated being well.eNuipped to deal with these issues, in ways that are both
normati5ely attracti5e and practically plausible"
Oith regard to sentencing, again, we ha5e seen that there are interesting proposals, also well.
in%ormed by democratic principles, which .ideally at least. could be used to replace the
present practice or guide the elaboration o% plausible re%orms to it" The %act that changes are
&!
Kpinion polls may be use%ul to recogni+e the most immediate or urgent consumers6 choices, but democracy is
not and should not be interested in that" >emocracy is not about how to satis%y the consumption pre%erences o%
the majority, but rather about how to ensure pro%ound and broad agreements on %undamental public issues about
justice, %reedom or eNuality"
20
The 4enter %or >eliberati5e >emocracy, %rom )tan%ord Fni5ersity, describes deliberati5e polls as 7an attempt
to use tele5ision and public opinion research in a new and constructi5e way" A random, representati5e sample is
%irst polled on the targeted issues" A%ter this baseline poll, members o% the sample are in5ited to gather at a
single place %or a wee*end in order to discuss the issues" 4are%ully balanced brie%ing materials are sent to the
participants and are also made publicly a5ailable" The participants engage in dialogue with competing experts
and political leaders based on Nuestions they de5elop in small group discussions with trained moderators" Marts
o% the wee*end e5ents are broadcast on tele5ision, either li5e or in taped and edited %orm" A%ter the
deliberations, the sample is again as*ed the original Nuestions" The resulting changes in opinion represent the
conclusions the public would reach, i% people had opportunity to become more in%ormed and more engaged by
the issues"8 )ee httpGCCcdd"stan%ord"eduCpollsCdocsCsummaryC
14
necessary seems to me ob5ious ,and again, the actual practice in Austin and Saxby or
Schifrin simply con%irms this intuition" Mrotesters were reproached and %inally condemned in
ways that actually undermined the 5ery practice o% protesting that democrats consider 5ital
%or democracy" 4ertainly, such decisions ,openly hostile to democratic contestation. may be
explained by numerous reasons" 3owe5er, it is di%%icult not to lin* them with the juricentric,
top.down, indi5iduali+ed decision.ma*ing process that produced the %inal judicial decisions"
Alternati5e processes ,we can hypothesi+e. more sensiti5e to an inclusi5e process o%
deliberation, would at least be more sensiti5e to the demands o% the less ad5antaged, which in
many occasions seem to %ind it so di%%icult to present their 5iews in public and thus enrich our
democracies"
0inally, we paid attention to the penal decision.ma*ing process" $t seems clear that, without
the introduction o% democratic changes at this stage, nothing could really change in the areaG
%rom the democratic perspecti5e, it is clear that we need better and %airer criminal trials, and
also better sentencing process, but no impro5ements would be actually possible i% the laws to
be applied and interpreted in each case were unjust" According to our discussion so %ar,
democratic theory has been 5ery help%ul in the area, by pro5iding us with critical tools %or
objecting to both penal elitism and penal populism" The democratic critiNue o% both these
dominant penal currents is o% primary importance" 3owe5er, these objections are not enough
%or our purposes" Oe do not just need to object to the pre5alent decision.ma*ing process in
the area, which has been so dramatically elitist %or so long, but also need to start thin*ing
about democratic ways o% replacing it" Again, our initial examples pro5ide us with excellent
illustrations to what $ am saying" K% course, one way %orce certain interpretations, and show
that there are no reasons %or applying the existing normati5e in such a restricti5e way" /ut
7%inding ways out8 is not the right answer to an unjust or repressi5e legislationG the problem
starts %rom the 5ery %act o% ha5ing those laws, call them Anti.terrorist Laws, li*e in ngland,
Argentina or cuador; or Anti.)edition Laws; or Anti.)ocial /eha5ior Laws" Fnder the light
o% these %indings, my conclusion is that it is both possible and desirable to in%orm and shape
the 4riminal Law with democratic theory, all the way down"
$n any case, it seems clear that in order to reach a %ull integration between the 4riminal Law
and democratic theory, there is still too much theoretical and practical wor* to be done" 0or
the purposes o% this paper, and gi5en the space and time constraints that limit this exploration,
$ will concentrate my attention on three issues, concerning how this integration is being
de5eloped and could be impro5ed" The %irst has to do with conse1uences o% deliberation %or
the 4riminal Law; the second has to do with the openness o% deliberati5e democracy to
conflicts- and social tensions in general; and the third has to do with issues o% democratic
authority and 4riminal Law"
i@ 2he Criminal Law and the beni$n conse1uences of democratic deliberation" >uring many
years, a simple <but empirically unsupported@ assumption suggested the existence o% a strong
correlation between political participation and puniti5ism" The idea <central to the abo5e.
presented notion o% penal populism@ was that the 5ast majority o% the people were moti5ated
by re5enge, and systematically de%ended more punishments and more se5ere punishments in
what concerned the 4riminal Law" This story had ob5ious implications in terms o% public
policyG one had to be care%ul be%ore opening the 7Mandora /ox8 o% political participation in
the area o% 4riminal Law, gi5en the dramatic conseNuences that tended to %ollow %rom it <i"e",
impulses o% re5enge; stricter punishments@" Assumptions o% this *ind played a crucial role in
theoretical discussions about punishment and 4riminal Law, and mo5ed e5en 4riminal Law
15
theorists %rom the le%t to resist any aperture o% the 4riminal Law to democratic participation
<0errajoli &!L!G 200L; Qa%%aroni 200#, 200A@"
0ortunately, in the last years we ha5e seen the de5elopment o% interesting empirical
experiments that helped us to recogni+e that those alarming claims connecting democracy and
puniti5ism were, to say the least, not ob5ious" The wor* o% 1ames 0ish*in <we ha5e already
made re%erence to it@ has been particularly help%ul in this respect" The results o% the %irst
deliberati5e pole that was carried out in Great /ritain %or discussing the issue o% rising crime
and what to do about it, showed particularly interesting results" Kn the one hand, they o%%ered
7a picture o% better in%ormed and more thought%ul public opinion8 <Lus*in et al 2002, 9L9;
>+ur 20&2, &&0@" Kn the other hand, they also showed the emergence o% less puniti5e
attitudes among citi+ens, including a greater awareness regarding the implications o% prison
and long sentences <ibid"@"
These studies, related to the citi+ens6 attitudes toward crime, ha5e come together with other
interesting empirical wor*s, pointing out towards other positi5e conseNuences o% democracy
<and deliberati5e democracy, in particular@, in the area o% 4riminal Law" $ am thin*ing about
studies that presented 7e5idence o% the 5irtues o% Ddeliberati5e democracyE in reducing mass
incarceration8 <Taslit+ 20&&, &#L; Green 200A; /ar*er 200A, 200!, 20&#@" This new line o%
wor* came to pro5ide empirical support to the idea that 7ci5ic engagement in a deliberative
policy.ma*ing process can produce more eNuitable and less repressi5e public policies8, and
do so by closing the gap between 7the public6s demands %or retribution and the criminal
justice o%%icials6 technocratic responses to crime8 <ibid", 9&@" The idea is that 7public
participation8 tends toward 7penal moderation rather than law and order politics, contrary to
con5entional claims about too much democracy8 </ar*er 20&#, &9&; (iller 200L@" $n
addition, we ha5e now better data about the importance o% %a5ouring the democratic
integration o% %elons and %ormer o%%enders <Fggen et al 200A@"
2&
$n my 5iew, the best case
ad5anced by these empirical studies exploring connections between democracy and the
4riminal Law is a 7negati5e8 oneG they ha5e helped us understand in what way the
7brea*down8 o% democracy in many o% our societies accounts <or partially accounts@ %or the
massi5e rise in incarceration o5er the past three decades </ar*er 200!, 20&#@"
22
All these empirical studies, o% di%%erent type, ha5e undoubtedly contributed to strengthen the
case %or deliberati5e democracy in the area o% 4riminal Law" They allow us to imagine the
possibility o% a %airer criminal justice system"
3owe5er, we do not need to appeal to these uncertain predictions in order to ma*e my case
%or deliberati5e democracy" $% 7we8 <meaning those o% us who support deliberati5e
democracy@ ma*e a case %or this particular understanding o% democracy, this is not because
democracy tends to produce good conseNuences in issues related to crime, but %or reasons o%
principleG we de%end democratic mechanisms because we understand that they o%%er us the
best way <this is to say, the most justi%ied way@ %or dealing with our disagreements and
2&
Ohile $ am writing this, in ngland ,where $ li5e at the moment. the (inister o% 1ustice is ma*ing it more
di%%icult %or prisoners to recei5e boo*s %rom outside" )ee, %or example,
httpGCCwww"theguardian"comCsocietyC20&9CmarC2BCminister.rules.out.rethin*.ban.sending.boo*s.prisoners " $n
Argentina, my country, the worst criminals, prosecuted %or crimes against humanity, are pre5ented to ta*e
courses o%%ered by the main national uni5ersity <F/A@ in the prisons where they are detained" )ee the decision
by the national uni5ersity hereG httpGCCwww"uba"arCarchi5osUubaC20&2.0L.0LUB0'!"pd%
22
The studies that $ am ta*ing into account are in most cases %ocused on the phenomenon o% mass incarceration
in the Fnited )tates"
16
uncertainties regarding issues o% crime" Ohen properly designed, they represent arrangements
that we %ind to be %ully respect%ul o% our moral eNuality and eNual dignity" And we would
de%end these mechanisms e5en in the case that the empirical studies began to show di%%erent
results"
2#
$n other words, we do not base our case %or deliberati5e democracy in the area o%
4riminal Law on the assumption that 7more deliberative modes o% criminal justice
policyma*ing would be ,or at least could be. conduci5e to moderate rates o% punishment8 ,as
some authors ha5e improperly suggested <Rowan 20&2, 99@" -ow, e5en though $ do not share
this latter line o% criticism, $ do thin* that we should re%ine our approaches to democracy in
this respect" Oe should sophisticate our use o% democratic theory; clari%y what conception o%
democracy we support, and %or what reasons; and recogni+e that the most important ser5ice
that democracy can ma*e to the 4riminal Law comes not at the explanatory, but rather at the
justi%icatory le5elG democracy can help us obtain a more justi%ied 4riminal Law <$ will come
bac* to this point below@"
ii@ *emocratic deliberation and disrutive social rotests" The second clari%ication that is in
order is the %ollowing" According to well.established approaches to deliberati5e democracy,
democracy is basically about interchanging arguments" -ow, i% this were actually the case,
then one o% the main claims o% this paper would be se5erely a%%ected" $n %act, $ am here
objecting to traditional approaches to the 4riminal Law %or many reasons, but also ,and
particularly. %or being improperly hostile to political disruptions and social protests" (ore
signi%icantly, $ am here using the theoretical apparatus o% deliberati5e democracy %or critically
assessing those 5iews" 3owe5er, i% it were true that deliberati5e democracy were only related
to exchanging arguments, then such a 5iew o% democracy would help me to object di%%erent
aspects o% the dominant approaches to 4riminal Law, but not some o% the aspects $ am most
interested in objecting to <(edearis 2009@"
4learly, there are good grounds %or ma*ing this criticism to deliberati5e democracy,
particularly i% one ta*es into account 1urgen 3abermas original de%inition o% the concept,
which ties it too closely to the 7exchange o% rational arguments8" 3a5ing said this, howe5er, $
should clari%y, %irst, that many other adherents o% deliberati5e democracy ha5e adeNuately
critici+ed this approach %or being improperly and unnecessarily narrow" 1ane (ansbridge and
$ris (arion Voung, %or example, maintained that through their emphasis on consensus the
exchange o% arguments and reasons, deliberati5e theories ha5e inadeNuately relegated other
%orms o% communication as rhetorical and strategic communication" 0or instance, $ris Voung
challenged 1urgen 3abermas6 5iew on deliberati5e democracy %or considering arguing as the
pri5ileged and legitimate discourse in the public sphere" 0or her, pre5ailing deliberati5e
theories improperly establish exclusionary norms o% dispassionateness, orderliness, ci5ility
and articulateness <Voung 2000, 9B; 200&@" 4ontrary to 3abermas6 5iew, Voung maintains
that alternati5e %orms o% speech <which may include rhetoric, street demonstrations and
protest@ should also be considered 5aluable %orms o% discourse" $n her opinion, many o% these
acts are oriented toward inclusion" 7D$nE a deep democratic society ,she a%%irms. the
presumption should be in %a5our o% the protestors that their purpose is to persuade8 <ibid",
9L@" )imilarly, 1ane (ansbridge tried to resist such restricti5e approach to deliberati5e
democracy" $n her words, 7DtooE %reNuently deliberation has seen only as aiming at an
understanding that produces substanti5e consensus,8 thus unduly relegating con%lict"
3owe5er, she adds, 7good deliberation should also illuminate con%lict" $t should lead
participants to a more nuanced understanding o% their sel5es and their interests, ideally less
2#
3owe5er, $ must recogni+e that $ do not see these positi5e de5elopments as ha+ardous de5elopments, but
rather as the 7natural8 products o% more inclusi5e and deliberati5e settings"
17
in%luenced by hegemonic ideas, in a way that may put them in direct con%lict with other
participants8 <(ansbridge 200B, &.2; also stlund 200!; 0ung 200B@"
$ personally share this more expansi5e understanding o% deliberati5e democracy, which $ ha5e
tried to de%end in other occasions, in connection with the 4riminal Law <Gargarella 20&&,
20&2@" (oreo5er, $ consider this to be the only consistent and attracti5e approach to
deliberati5e democracy, and the one that merits our closest attention" This approach suggests
that the most crucial and attracti5e %eature o% democracy is precisely its capacity %or ta*ing
the 5iewpoints o% the dissidents ,the 5iewpoints o% those who disagree with the majority
5iew. seriously" Oithout a serious consideration o% those 5iewpoints, public decisions would
lose the impartial character that should distinguish them ,an impartial character that gi5es
deliberati5e democracy its meaning and sense"
-ow, gi5en that in many occasions the expression o% dissident 5oices and 5iewpoints assume
disrupti5e and unpleasant %orms <as in the particular cases o% protests $ am interested in
considering@, $ will ta*e some additional time trying to justi%y why <and how@ deliberati5e
democracy should <could@ protect those demands"
0irst, someone may want to say that deliberati5e democracy should protect the dissidents6
75oices8 or 7words,8 but not necessary their 7actions"8 3owe5er, it is 5ery important to
recogni+e that some non.typically expressi5e beha5iour may contain expressi5e aspects" $n
those cases, we need to ma*e additional e%%orts so as to preser5e the exressive comonent o%
these actions, i% that were possible"
29
The 7%lag burning8 cases, among others, ha5e %orced
legal scholars to thin* along these lines"
2B
>octrinaires ha5e tended to conclude by saying that
political messages can be con5eyed in many di%%erent ways, which do not necessarily ,and do
not only. include 7words alone,8 written or spo*en" Thus, the action o% throwing an egg at a
politician, which may be legally and morally condemned, usually con5eys a strong message ,
actually a 5ery strong critical message. in political terms" To neglect that part o% the story is
to neglect a crucial part o% it"
2A
Oe need to open up space %or the consideration o% the
illocutionary asects o% non.5erbal acts, particularly within a theory that emphasi+es
democratic deliberation"
)econd, someone could object to what $ just said, by adding that the dissident claims <either
through their 75oices8 or 7actions8@ do not need to adopt disrupti5e or improper %orms"
3owe5er, my impression is that we cannot expect dissidents, less demand them, to present
their claims in a neat and Nuiet %orm, as i% they were writing an op" ed" in a newspaper
<=al5en &!AB@"
2'
Fsually, their demands ta*e disrupti5e %orms not because dissenters or
24
$n NL#0 v. 3ruit Pac/ers <#'' F")" BL, &!A9@, and examining the issue o% pic*eting, 1ustice /lac* maintained
that when the action o% patrolling and that o% speech were so intertwined, court should 7weigh the
circumstances8 and 7appraise the substantiality o% the reasons ad5anced8 %or the regulation o% the acti5ity o%
pic*eting <ibid", at ''.'L@" As (" )cott summari+ed his position, /lac* stated that 7$% in%ormation con5eyed by
the pic*eters is law%ul, pic*eting to con5ey that in%ormation cannot be deemed unlaw%ul8 )ee (" )cott <&!'9@,
7Mic*eting under the 0irst Amendment,8 2A 2he 4astin$s Law )ournal &A', &'B"
2B
2exas v. )ohnson- 9!& F")" #!' <&!L!@; 2in/er v. *es Moines Sch. *istr. #!# F")" B0# <&!A!@"
2A
$n addition, i% speech <particularly, political speech@, is present, one could approach these cases with the criteria
de%ined by the 4ourt in other %reedom o% expression.cases that included pro5ocati5e conduct or language" The
4ourt could in5o*e ,as it sometimes did. the clear and resent dan$er test to determine whether the actions in
Nuestion a%%ord constitutional protection or not" 0or example, see 3einer v. New 5or/ #90 F")" #&B <&!B&@"
27
Against those who objected to those disrupti5e expressions maintaining that they could not be classi%ied as
7pure speech8 but rather as 7plus speech8 <as the F) )upreme 4ourt has put it@, 3arry =al5en maintained that
one could reject the 7neat dichotomy8 between 7pure speech8 and 7plus speech8" )peech, %or him, always comes
together with 7plus speech8G 7$% it is oral, it is noise and may interrupt someone else; i% it is written, it may be
18
protesters li*e to create con%lict, but simply because they need to be heard" $n modern
societies, and particularly in those characteri+ed by high le5els o% ineNuality and
impo5erished institutional systems, disad5antaged groups ha5e an unjusti%ied and
disproportionally low opportunity to ma*e their claims heard <our institutional systems seem
to be much more permeable to the claims o% the power%ul %ew, than to the claims o% the
majority o% the disad5antaged@"
Third, the %act that some o% these disruptions appear to be in con%lict with the law <i"e",
breaching peace and order@ should not preclude %urther legal discussions and re%lections on
the topic <7you just bro*e the law8@" /y contrast, it is precisely in those cases when we need
to begin a 7theoretical ascent8, as Ronald >wor*in put it <>wor*in 200A, 2B@"
2L
At that point,
we need to start wondering, %or example, what di%%erent rights ha5e been 5iolated, and how to
put them together, without simply assuming <as t seems to be the rule in these cases@ that
protesters do not ha5e the law in their side, or that they do not ha5e %undamental rights to
claim in their %a5our" To start with, protesters can claim to ha5e in their side not only rights to
%ree speech and rights to petition and mani%est, as it was the case in Austin and Saxby-
67
but
also more substanti5e rights, such as their social rights, as it was case in Schifrin"
0ourth, the %act that the rights o% protesters collide with other %undamental rights o% the public
should not ta*e us to thin* that the rights o% the %ormer should be then curtailed so as to
preser5e the rights o% the latter" $n other words, the %act that $ a%%ect your rights, when $ begin
to exercise my own rights, does not mean that $ should stop exercising my right or had to
exercise it in a di%%erent manner" Merhaps it is the case that 7you8 rather than 7$8 had to accept
certain limitations in the scope o% your rights" Thin*, %or example, about the case o% the
political cartoonist who o%%ends the honour o% a politician through her satiric drawings; or the
case o% a public criticism against a public o%%icer, which includes %alse statements without
rec*less disregard <thus, %or instance, in the New 5or/ 2imes vs. Sullivan case #'A F")" 2B9,
&!A9@" $n these cases, we tend to accept that the right o% the a%%ected, rather than the right o%
the 7o%%ender8 needs to be somehow curtailed or limited"
0i%th, some people seem to accept the right to protest but at the same time allow signi%icant
curtailments o% it, when 5iolence appears or is li*ely to appear <thin*, again, about the Austin
and Saxby case@" Against this 5iew, one could assert the %ollowingG the %act that a particular
protest comes together with acts o% 5iolence says nothing against the importance or the need
to protect and preser5e the protest"
#0
Oe ha5e a long experience dealing with these
litter8" Lea%lets, in this respect, do not 7simply litter"8 They are 7litter with ideas8" And this is why we need to
ma*e an e%%ort to pay attention to the message at play <=al5en &!AB, 2#@" Geo%%rey )tone maintained a similar
idea" 3e statedG 7-early all %orms o% communication necessarily inter%ere with some legitimate state interest"
Lea%leting leads to littering; billboards and posters may be deemed unaesthetic; public spea*ing, whether or not
ampli%ied, may annoy passersby; pic*eting or marching may obstruct tra%%ic; and so on8 <)tone &!'9, 290@"
28
0or him, the discussion becomes more interesting when judges began to recogni+e the need o% going beyond
7the legal materials o% their own jurisdiction that %all into the doctrinal neighborhood o% their immediate
problem8, and ground their decisions on a 7much more general interpretation8 that embraced 7legal materials as
a whole8 ,thus initiating a 7theoretical ascent8 <ibid"@"
2!
0or 3elen 0enwic*, Austin and Saxby has con%irmed that 7the police ha5e a 5ery wide range o% powers to use
e5en against entirely peace%ul protesters i% a %ew protesters are or may be disorderly8 <0enwic* 200', ''&@" )ee
also (ead 200!@"
30
$n addition, not all disruptions ma*e a protest in the street unpeace%ul" Thus, in recent cases, the uropean
4ourt o% 3uman Rights also recogni+ed that disruptions incidental to holding an assembly do not render it
7unpeace%ul,8 <Stan/ov and the 8nited Macedonian 9r$anisation (linden v. 0ul$aria, 2 Kctober 200&@, and also
that the mere presence o% a %ew agitators did not trans%orm the assembly into a 5iolent one"
19
di%%iculties, %or instance concerning the right o% stri*e and situations o% 5iolence" That
experience seems to be per%ectly applicable in these circumstances" Oe *now, %or instance,
that we may per%ectly pre5ent or <once occurred@ deal with acts o% 5iolence separately,
without putting into Nuestion the right to stri*e" Oe may gi5e %ull protection to the right to
stri*e while ta*ing care o% those who create 5iolence separately"
)ixth, it is normally assumed that protected expression, li*e the expression in 7public
%orums,8 can be subjected to reasonable regulations"
#&
)o, what would be the problem in
accepting the imposition o% regulations concerning the right to protestH The go5ernment, we
*now, 7has the power to preser5e the property under its control %or the use to which it is
law%ully dedicated"8
#2
This is so, particularly, regarding 7content.neutral regulations that
come to establish limits regarding the 7time, place, and manner8 o% the expressions, so as to
ensure the greater respect %or the rights o% all"
##
Fsually, these regulations sur5i5e judicial
scrutinyG e5erybody agrees on the importance o% accommodating the rights o% all; and
conseNuently most people recogni+e as just and pertinent those directi5es that attempt to
ensure our better coexistence" -ow, the %act that content.neutral regulations may ser5e an
important public purpose. does not deny that content.neutral regulations may be
unreasonableG in many occasions, they just come or ser5e to undermine the 5ery expression
that they are supposed to reasonably regulate"
#9
#&
The 7public %orum8 doctrine was %irst ad5anced in 4a$ue v. C(9 <#0' F")" B0&.&L@ where 1ustice Roberts
%ound a constitutional right to use 7streets and par*s %or communication o% 5iews,8 which he grounded on the
%act that 7streets and par*sSha5e immemorially been held in trust %or the use o% the public and, time out o%
mind, ha5e been used %or purposes o% assembly, communicating thoughts between citi+ens, and discussing
public Nuestions8 <ibid", at B&B.A@" Going beyond this principle, in 3ood +mloyees Local !7: v. Lo$an Pla;a
<alley, #!& F) #0L <&!AL@ the 4ourt recogni+ed the right o% wor*ers to organi+e a paci%ic pic*et in a shopping
center" 3owe5er, the 4ourt departed %rom this principle in other cases <see, %or example, 4ud$ens v. NL#0, 929
F) B0', &!'A; or Lloyd Cor. v. 2anner, 90' F) BB&, &!'2@; and also re%used to extend the category o% 7public
%orum8 to other non.traditional %orum <see, %or example, (/scon v. Lee, &&2 )"4t" 2'0&, 2'&L, &!!2@"
#2
=reer v- Soc/, 929 F")" L2L"
##
Linmar/ Associates- (nc. v. 2ownshi of >illin$boro, 9#& F")" LB <&!''@"
#9
-otably, both judges at the le5el o% the F")" )upreme 4ourt and in the uropean 4ourt o% 3uman rights ha5e
de%ined a list o% conditions that content.neutral regulations need to respect, in order to be upheld" Thus, %or both
these courts it is clear that regulations cannot come to undermine dis%a5ored political 5iews; must be aimed at
ser5ing a signi%icant )tate interest; be narrowly tailored; lea5e open ample alternati5e means o% expression; and
be applied in non.discriminatory ways <see, %or example, 7Grace 5" Fnited )tates,8 9A& F) &'&, &!, &!L#@" $n
the uropean context, probably more than in the F")", 7there is a reasonable degree o% academic consensus
regarding the need to protect public protest in order to sa%eguard minority interests8 <see 3" 0enwic*, &!!!,
7The Right to Mrotest, the 3uman Rights Act and the (argin o% Appreciation,8 2he Modern Law #eview- 5ol"
A2, n" 9, 9!&.B&9, 9!#@" $t is generally recogni+ed that the 7denial o% a public %orum %or the exercise o%
expressi5e rights bears uneNually on di%%erent groupsG it may amount in e%%ect to a denial o% the %ree speech
rights o% certain minority groups since eNual access to other means o% exercising those rights will tend to be
una5ailable8 <ibid", 9!9@" (eanwhile, in the F")", the )upreme 4ourt has tended to be 5ery de%erent towards
content.neutral regulations, upholding them on most occasions <the 4ourt uphold, %or example, regulations o%
these type establishing restrictions o% time; number o% participants; the decibel le5el o% speeches; or the
placement o% signs" )ee K6-eill, &!!!, 9'A.'@" /ut e5en in this case, the openness o% the 4ourt did not mean
that the established rules became toothless <and, o% course, e5en i% this were the case, that would not be a good
reason %or not ta*ing seriously reasonable standards li*e the ones de%ined by both courts@" $n particular, the F")"
4ourt has paid attention to the di%%erential impact o% the content.neutral regulations, and made sure that the
spea*er was a%%orded 7a %orum that is accessible and where the intended audience is expected to pass8 <Students
A$ainst Aartheid Coalition v. 9 ? Neil, AA0 0" )up" ###, ##!@" Accordingly, in *r. Martin Luther @in$ )r.
Movement v. City of 4hicago, 9&! 0" )upp" AA', the 4ourt struc* down a regulation that pre5ented a ci5il rights
organi+ation %rom marching through a white neighborhood, because the 5ery idea o% the protesters was to reach
that particular audience; and in Schneider 5" State, the 4ourt struc* down an ordinance reNuiring a permit %or
any house.to.house can5assing, which in principle appeared as a permissible content.neutral regulation, because
it disproportionably burdened groups with %ewer resources <#0L F")" &9', &!#!@"
20
0inally, one could claim that democracy reNuires the limitation, rather than the protection o%
social protests, as $ ha5e suggested here" -otably, in %act, this is what many judges
maintained, in their decisions about social protests" Remember, %or example, the judicial
response that $ Nuoted, regarding the Schifrin case" 1udges o% the Appeal 4ourt then
maintained that according to Argentina6s 4onstitution there was 7only one legitimate %orm %or
expressing the so5ereign will o% the people,8 which was su%%rage" Through this means ,it
added. the people 7accept or reject the alternati5es that the political class poses to them"8
-ow, against this important claim there is an ob5ious answer, which is, by the way, one that
naturally and compellingly deri5es %rom the approach $ tried to de5elop in this paper" The
main response in the %ace o% that argument relates to this simple, basic NuestionG 70ine, but
could you be more precise and tell me what conception o% democracy you ha5e in mind, in
your appeal to democracyH8 $t seems clear to me <and this has been my argument so %ar@ that
a deliberati5e conception o% democracy not only resists that restricti5e judicial conclusion but
also suggests a protecti5e, rather than a hostile approach to social protests ,particularly in the
context o% deep and unjusti%ied ineNualities, as the Argentine one" /ut $ should say that $ am
also con%ident that less sophisticated or ambitious understandings o% democracy would reach
to similar outcomes <by the way, the same Argentine judges who were in5o*ing the -ational
4onstitution6s conception o% democracy were not ta*ing into account that that 4onstitution is
strongly committed to numerous participatory mechanisms, %or example" Against what they
claimed, the -ational 4onstitution did not limit democracy to periodical su%%rage@"
iii@ *emocratic authority and le$itimacy of the Criminal Law.
$n the pre5ious pages $ maintained that the case %or deliberati5e democracy did not deri5e
%rom the supposed bene%its that it generated, concerning penal moderation; or the way in
which it could illuminate our approach to social protests" /y contrast, $ claimed that the
5irtues o% deliberati5e democracy were connected to reasons o% principle, namely the way in
which it honoured our eNual moral dignity"
4oncerning the %oundations o% the 4riminal Law, this same democratic, principled approach
may play a uniNue, necessary role, by helping it to deal with the problem o% political
legitimacy" -owadays, our 4riminal Law theorists seem to ha5e abandoned all serious
re%lections about the legitimacy o% the Law, as i% the Nuestions posed by those concerns had
been already answered, or i% the answers that were o%%ered were ob5iously acceptable" /ut the
%act is that our 4riminal Law su%%ers %rom serious legitimacy problems" The origin o% these
problems seems clearG criminal norms imply in5ol5ing the )tate in the imposition o% se5ere
pain, as a daily response to o%%enses committed by certain citi+ens against other citi+ens" /ut
this public response is ob5iously problematicG 3ow can we justi%y the imposition o% se5ere
pain to any personH Ohy are we presupposing that the imposition o% pain represents a
reasonable response to an o%%enseH 3ow do we justi%y the authority o% public o%%icers to
distribute and impose punishments <more speci%ically, ta*ing into account the way in which
they routinely do it@H Ohy should someone simply assume that retribution is a better response
than reparationH Ohy should someone accept that isolation in a prison is better <or a means
toW@ social reintegrationH
As )haron >olo5ich has put it, 7DtEthe punishment o% criminal o%%enders can in5ol5e the
in%liction o% extended depri5ations o% liberty, ongoing hardship and humiliation, and e5en
death" Krdinarily, such treatment would be judged morally wrong, and roundly condemned,
yet in the name o% criminal justice, it is routinely imposed on members o% society by state
21
o%%icials whose authority to act in these ways toward sentenced o%%enders is generally ta*en
%or granted8 <>olo5ich 2009, #&0@"
Fndoubtedly, the tas* o% justi%ying what the )tate does through its coerci5e powers is and
will always be a di%%icult one, but those di%%iculties should not discourage usG the
impossibility o% %inding the most per%ect answer should not pre5ent us %rom trying to a5oid
the worst onesG the present situation is too dramatic to simple accept it as it stands" $n the %ace
o% that drama, the democratic argument suggests that the tas* o% thin*ing about the shape,
contents and scope o% our 4riminal Law should be done collecti5ely, through an inclusi5e
process o% discussionG Ohat a%%ects us all should be decided by all" (ore precisely, the idea is
that all %undamental matters about issues o% intersubjecti5e morality should be decided by 7all
those potentially a%%ected8, so as to impro5e our chances o% deciding impartially" This aim
reNuires us to ma*e a special e%%ort %or ensuring that the 5oices o% all, and particularly the
5oices o% the most a%%ected by crime and punishment <particularly including the o%%enders and
the o%%ended@, be heard"
#B
$ share, in this regard, $an Loader6s 5iew, according to which an
inclusi5e political deliberation is a good response, particularly in these di%%icult cases related
to criminal justiceG 7The resulting opportunities %or public communication about contested
problems and social con%licts may thus help, not only to engender a sense o% agency and
political e%%icacy among <pre5iously excluded@ citi+ens and social groups, but also to
introduce into debates on security greater *nowledge and political experience, re%lection on
hitherto ta*en.%or.granted positions, and the possibility o% indi5idual and collecti5e learning8
<Loader &!!', #L'@"
$ understand that there are still numerous problems to deal with, related to the proposed
connection between democracy and 4riminal Law" 0or instance, how to organi+e this
proposed democratic processH 3ow to ensure that we consider and properly balance the
5iewpoints o% allH 3ow to a5oid the ris*s o% pure majoritarism <that penal populism
promotes@H These are di%%icult tas*s, but the seriousness o% the present situation should
inspire us to wor* %or the introduction o% immediate and pro%ound re%ormsG %or decades, the
4riminal Law has been captured by small and pri5ileged elites that seem to use the 4riminal
Law in their own %a5our, so as to preser5e the unjust ad5antages that they presently enjoy" Oe
li5e in unjust and uneNual societies, and it is simply not acceptable to ha5e our criminal
norms created, applied and interpreted by an elite that bene%its %rom this situation, and <Nuite
ob5iously@ is ne5er a%%ected by those coerci5e powers that they administer" 3ope%ully, in
%uture, not so remote circumstances, things will be di%%erent" Merhaps, in such a desired
scenario we will able to recogni+e that democracy needs to preser5e and protect as rich
treasures the 5oices o% those who dissent, 5oices that sometimes carry messages that we
disli*e, in %orms that we disli*e, but %inally messages through which we learn how to li5e
together"

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Voung, $" <200&@, 7Acti5ist 4hallenges to >eliberati5e >emocracy,8 Political 2heory- 5ol" 2!,
n" B, A'0.A!0"
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