A matter of degree: A justice framework for penal legitimacy

Abstract

Discussion on legitimacy has highlighted its dialogic nature. The diversity of stakeholders in the penal system implies that penal policies and practices should be justifiable both internally (to offenders) and externally (to society at large). While most studies have focused on the internal aspect of penal legitimacy – the justification of authority through offenders’ perspectives – this paper calls for attention to the external stakeholders’ demands. Consequently, it becomes relevant to envisage ways of balancing between the conflicting standpoints of offenders and society at large regarding the justifications of penal power. For this purpose, this paper builds on Sen’s justice framework, whereby the best way to enhance justice is to avoid debating utopian ideals, and aims to apply its logic to the debate on penal legitimacy. It argues that it is not feasible to envisage a ‘legitimate prison’, and therefore it is better to focus on existing or possible alternatives of penal policies and practices. Since there are better and worse uses and justifications of penal power, legitimacy becomes a matter of degree. The reconciliation of conflicting views between preferable or less preferable uses and justifications of penal authority is suggested to be possible through exploring the potential of public debate.

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